Democratic lawmakers are pushing to repeal an 1873 anti-obscenity law known as the Comstock Act, a statute that anti-abortion activists have embraced in their efforts to further limit access to the procedure.

The law hasn’t been enforced in decades, and its modern-day use is controversial. The Supreme Court recently dismissed a case in which anti-abortion doctors argued in part that the 1873 law prohibited the mailing of mifepristone, a medication abortion pill — but conservative justices on the bench have indicated they’d be open to hearing similar arguments from different plaintiffs. And former advisers to Donald Trump, the Republican nominee for president, have argued that if elected, he could leverage Comstock to curtail access to abortion. 

Below, The 19th explains what exactly this law is. 

What is the Comstock Act?

The Comstock Act is an 1873 anti-obscenity law that was written to curtail material “intended for producing abortion, or for any indecent or immoral use.” This included birth control, pornography and anything related to sexual health. 

What is the status of the Comstock Act now?

The law fell into disuse in the 1960s, and Roe v. Wade, the 1973 Supreme Court decision that established a federal right to abortion, had previously barred its enforcement. But while Congress overturned the law’s prohibition on mailing birth control, it has not acted to undo the full act. It came back into play after Roe was overturned in 2022 by the decision in Dobbs vs. Jackson Women’s Health Organization.

In January 2023, the Department of Justice issued a legal opinion arguing that the Comstock Act does not apply to mailing mifepristone or misoprostol, the other medication used in medication abortions, because they have uses beyond abortion. “There are manifold ways in which recipients in every state may lawfully use such drugs,” a DOJ memo argued. 

How could the election impact its enforcement? 

No matter how courts interpret Comstock, it wouldn’t be enforced unless the White House agrees to do so — a development likelier under a Republican president. Advisers to Donald Trump, the presumptive GOP nominee for 2024, have endorsed using the Comstock Act to curtail abortion access. 

What else could be affected by enforcing the Comstock Act?

Some conservative groups, including the Heritage Foundation and the anti-abortion Students for Life, have also pointed to the Comstock Act as a possible way to curb access to contraception, particularly emergency contraception. 

Emergency contraception generally works by delaying ovulation and preventing pregnancy. Medically, neither using emergency contraception nor hormonal birth control is considered terminating a pregnancy. 

If resurrected, the law’s morality provisions could also be interpreted far more expansively: to bar the mailing of other “indecent” or “immoral” material, including medication such as HIV prevention drugs, or items like lingerie, sex toys, pornography or books. (The law was originally used to stop distribution of literature including Walt Whitman’s poetry collection “Leaves of Grass” and “Ulysses,” the James Joyce novel.)

What is the text of the Comstock Act?

Per the Legal Information Institute: 

Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and—

Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

It goes on to say that someone who “knowingly uses the mail,” or causes it to be used to send such materials, should be fined and imprisoned.