151-year-old Comstock Act is 'relic' that should be overturned, House urges
Anthony Comstock (1844-1915) used his position as a U.S. postal inspector to push for censorship and anti-vice laws. The Comstock Act of 1873 was named for him. (Bettman/Getty Images)
The House of Delegates urged the U.S. Congress to repeal a 151-year-old law that could be used to ban abortions at the ABA Annual Meeting in Chicago on Monday.
The Comstock Act was enacted in 1873 amid the country’s “anti-vice” movement. Among other things, the law prohibits the mailing of “obscene, lewd or lascivious” materials and anything “designed, adapted or intended for producing abortion.”
In introducing Resolution 504, Wendy Mariner, a Section of Civil Rights and Social Justice delegate, noted if the Comstock Act is enforced, it could criminalize the distribution not only of abortion medication and information about abortion but also anything an agency or court decides is vile, indecent or immoral.
“The ABA stands for the rule of law and not arbitrary prosecution based on personal morals,” Mariner said.
While the Comstock Act was “largely ignored as an anachronism for many decades,” anti-abortion activists asserted after the fall of Roe v. Wade in June 2022 that the statute bans the mailing and distribution of the medication abortion pill, mifepristone, according to the report accompanying the resolution.
The U.S. Supreme Court considered the issue in two combined cases in which a federal appeals court blocked U.S. Food and Drug Administration decisions from 2016 and 2021 that expanded access to mifepristone. Among other things, the FDA allowed the drug to be dispensed by mail.
In June, the Supreme Court unanimously ruled that anti-abortion medical groups and doctors who challenged expanded access to mifepristone lacked standing to sue.
Past ABA President Hilarie Bass also spoke in favor of the resolution. She described the Comstock Act as a “relic” that was enacted less than a decade after the Civil War and before women had the right to vote.
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“It is now being seriously suggested that its existence should threaten the lives and the health of women in this country,” Bass said. “Can anyone truly suggest that women’s health care decisions should be dictated by representatives who enacted legislation before more than 50% of the population could elect them? Can anyone in this House imagine if men’s health care decisions were subjected to similar legislation?”
“It’s inconceivable,” she added.
The Section of Civil Rights and Social Justice submitted Resolution 504, which was overwhelmingly adopted.
The House also overwhelmingly adopted six resolutions related to abortion care immediately after the Supreme Court overturned Roe in 2022. These measures touch on various topics, including criminal and civil liabilities for individuals and groups assisting with abortions.
In 2023, the House passed another resolution that calls on government entities to enact laws and regulations that protect the right of any individual to travel across state lines to access medical care.
And at the midyear meeting in February, the House approved an additional measure that opposes legislation, regulations and litigation that restrict the right of health care providers that receive Medicare funding to provide patients with abortions in emergency situations.
