End the ‘zombie’ Comstock Act

Opinion editor’s note: Editorials represent the opinions of the Star Tribune Editorial Board, which operates independently from the newsroom.

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In 1873, Ulysses S. Grant was president, the institution that would become Ohio State University opened its doors and Jesse James’ gang carried out the first successful railroad robbery in what was then considered the American West — the small Iowa town of Adair.

Another noteworthy event that year: the enactment of the notoriously prudish Comstock Act, which criminalized the mailing of “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance.”

As readers well understand, much has changed in the 151 years that have passed since then. Unfortunately, Comstock’s antiquated, puritanical parameters on Americans’ freedom of choice and expression remain on the nation’s books. It’s time to repeal this legal relic, which was considered priggish by many even as it debuted.

A key reason that Comstock is still law is that lawmakers throughout the years understandably have focused their energy on addressing current challenges, not cleaning up outdated statutes. While Comstock has essentially laid dormant during the modern era, there’s a new urgency to eliminating this so-called “zombie” law.

U.S. Sen. Tina Smith, a Democrat from Minnesota, is commendably at the forefront of efforts to do so. In a recent commentary, Smith warned that Comstock could be resurrected to restrict or even ban access to abortion. As she noted, Comstock came up three times in recent oral arguments before the U.S. Supreme Court in a case involving access to mifepristone.

The drug is one of two prescribed in medication abortions, and it can also be used to manage a miscarriage. Comstock could be wielded to prevent the drug’s shipping to clinics or patients and prosecute anyone involved. “Even if the Supreme Court doesn’t take the bait, a newly re-elected President Donald Trump could order his Department of Justice to start interpreting that line to mean that it is illegal to mail mifepristone,” Smith wrote.

In 2023, medication abortions accounted for 63% of all U.S. abortions, up from 53% in 2020, according to the Guttmacher Institute. The medications, which are taken by mouth and have a strong safety profile, are understandably viewed by many as preferable to a surgical procedure. Impeding shipping of the drugs would likely reduce the number of women who can access them and therefore significantly reduce abortions. That’s why abortion opponents see the 1873 law as a modern-day opportunity.

In an interview on Thursday, Smith lambasted “radical” judges and anti-abortion forces who would dust off Comstock to impose their narrow views on all. She plans to introduce legislation that would repeal it, a sensible solution that the Star Tribune Editorial Board supports.

“My goal is to take away the Comstock Act as a tool” to limit abortion access, she said.

As concerns mount over Comstock’s misuse, Minnesotans should not be lulled into complacency. In early 2023, legislators passed the PRO Act, which codified access to reproductive health care in state law.

But as University of Minnesota law Prof. Jill Hasday noted, the Supremacy Clause of the Constitution means that federal law, as long as it is constitutional, would take precedence over state law. Comstock would trump the 2023 PRO Act and other state safeguards.

What makes Comstock powerful is that it’s already on the books, said Hasday, who is a Distinguished McKnight University Professor and Centennial Professor in Law at the U.

Congress doesn’t need to pass anything in order for Comstock to be tapped to limit abortion rights. That it’s already federal law also provides cover to a presidential administration wanting to use it to restrict health care for women. “It’s just laying there in wait until the law is repealed,” Hasday said, adding that “There’s no reason for Comstock to stay on the books one more day. It is serving no positive purpose.”

Advocates for repealing Comstock include conservative legal scholar Jonathan Turley. In a March commentary in The Hill, he wrote that Comstock is “one of the most glaring attacks on free speech principles in our federal code.”

Turley is right. Another critical point: Women weren’t allowed to vote in 1873. The Comstock Act was passed at a time when women had no political voice. Yet their health care today could be limited by restrictions enacted during an unenlightened, unrepresentative era.

Comstock’s expiration date is long past. Get rid of this harmful zombie law now.

Editorial Board members are David Banks, Jill Burcum, Scott Gillespie, Denise Johnson and John Rash. Star Tribune Opinion staff members Maggie Kelly and Elena Neuzil also contribute, and Star Tribune CEO and Publisher Steve Grove serves as an adviser to the board.