Could the Comstock Act Be Used to Limit Abortion Access Nationwide?

In a new brief, KFF examines how the Comstock Act, an 1873 anti-vice law banning the mailing of obscene matter and articles, could be used by an anti-abortion presidential administration to sharply restrict the availability of abortion nationwide. 

The Biden Administration’s Department of Justice has said the Comstock Act should not be interpreted literally with respect to abortion and has not enforced it. However, a future administration opposed to abortion rights could interpret the law differently, potentially criminalizing the distribution of abortion medications and other materials used to provide abortion care throughout the county—including in states where abortion is currently legal and protected.

While the presumed Republican nominee, Donald Trump, has not spoken publicly about the Comstock Act, leading anti-abortion and conservative organizations that support Trump’s candidacy have urged its enforcement. Further, in the recent oral arguments at the Supreme Court regarding the FDA’s regulation of mifepristone, two of the Justices signaled their support for the enforcement of the 150-year-old anti-obscenity law.

Some members of Congress who support abortion rights are pushing to repeal the Comstock Act, but discussions are in the early stages and repeal is unlikely in a closely divided Congress. Abortion has emerged as a key issue in the 2024 election, and the Comstock Act may be part of the debate.

Read the brief for more information and context about these issues.