Democratic U.S. senators are pushing for the repeal of an 1800s law over fear it will be used by a future conservative president or court to outlaw abortion nationwide, even in Minnesota, an abortion-legal state.

Sen. Tina Smith (DFL) is leading the repeal effort of the Comstock Act in the U.S. Senate. 

The Comstock Act was first mentioned by Supreme Court justices Clarence Thomas and Samuel Alito during oral arguments for an abortion pill case last month, as reported by NPR.

History of the Comstock Act 

The Comstock Act is an anti-obscenity law created in 1872 which bans the mailing of obscenity, including pornographic material and contraceptives. 

The bill was created in response to growing moral outrage during the Victorian era, said University of Minnesota law professor June Carbone. 

“When you have urbanization, part of what creates the moral panic, the time of the Comstock Act and the Victorian era, this anti-sex movement that characterizes the Victorian era is in response to urbanization,” Carbone said. 

The Comstock Act could be used to ban the mailing of abortion medication, NPR reported.

The Comstock Act today

According to NBC News, the Alliance for Hippocratic Medicine group argues the distribution of mifepristone, the leading drug for medicated abortion, is illegal under the Comstock Act. 

After the overturning of Roe v. Wade, medicated abortions increased from 39% in 2017 to 54% in 2022, according to the Gunther Institute. 

Nicole Quinones, a University graduate student studying sexual reproductive health and specializing in abortion policy, said the Comstock Act could be used to stop people from getting medicated abortion access.

“We know that medication, abortion or self-managed abortion at home or abortion via telehealth at home is very safe,” Quinones said. “So ultimately, this is just placing another barrier to access abortion care.” 

Cathy Blaeser, the co-executive director of Minnesota Citizens Concerned for Life, said she is concerned by the potential side effects of mifepristone. 

“We support protecting women from a very dangerous drug,” Blaeser said. “Mifepristone is a very dangerous drug.” 

In response to the abortion pill case, the American College of Obstetricians and Gynecologists said life-threatening side effects of mifepristone affect less than 1% of patients. 

Future of abortion in Minnesota

Smith has been aware of the potential use of the Comstock Act in abortion legislation due to her time at Planned Parenthood.

“I once worked at Planned Parenthood, so I was very aware of this old, archaic law that was lurking in the dusty files of the U.S. government that could be so disruptive, but nobody was paying any attention to the Comstock Act,” Smith said. 

While abortion is legal in Minnesota, all states bordering Minnesota restrict abortion to some extent. According to the Abortion Finder, Minnesota abortion laws require no waiting period or limit on pregnancy stage. 

In 2023, Gov. Tim Walz (DFL) signed additional protections for individuals who travel to Minnesota for reproductive health and for health care providers that give reproduction medicine out of state. 

Smith said even with the protections given by the Minnesota judges and the state legislature, the protections could be overridden by the Comstock Act. 

“Here in Washington, federal law supersedes state law,” Smith said. “So what I am concerned about is that a future Trump administration could attempt to use the Comstock Act to ban medication abortion, even in places like Minnesota, where state law says that it should be legal.” 

Quinones added healthcare providers worry the outcome will set a new barrier for them to do their job. 

“With this in play, I think that brings more of a government role into healthcare,” Quinones said. “Clinicians ultimately know what’s best for their patients, and when policing gets in the way they’re unable to do their job effectively, and ultimately, that means lives are going to be lost.”