Ellison, Smith say 150-year-old act could be used to ban medicinal abortions

Democratic U.S. Sen. Tina Smith and Minnesota Attorney General Keith Ellison said Friday they support repealing a formerly obscure 150-year-old federal law so it can’t be used by a future president to restrict access to medication abortions.

Smith noted that U.S. Supreme Court Justices Samuel Alito and Clarence Thomas raised the Comstock Act from history’s dustbin last week during oral arguments in a Texas case that could limit access to mifepristone, a drug used for medication abortions. The act, dating to 1873, prohibits the mailing of any “lewd, lascivious, indecent, filthy or vile article manner or thing” and that includes any material that can be used for an abortion, Smith said at a news conference in Ellison’s State Capitol office.

The act has not been used for more than 100 years, but now Republicans, including former President Donald Trump, view it as a means to restrict access to abortion through an executive action, Smith said. She wrote an opinion piece about her position published earlier this week.

Ellison, also a Democrat, noted that abortion is protected by law in Minnesota, but that could end if the Comstock Act is used by Trump in a second term or the court decides to use it in the Texas case. “Letting it continue to sit on the books invites mischief,” Ellison said.

Smith says she’s planning to introduce legislation to repeal the Comstock Act after the Supreme Court rules. But she conceded it wouldn’t pass the House this year because of the current Republican majority.

“Obviously we don’t have those votes right now and that’s why elections matter and that’s why it’s important to be talking about this now and thinking about this now,” Smith said.

Republican U.S. House Majority Whip Tom Emmer and Rep. Michelle Fischbach did not respond to requests for comment on Smith’s proposal.

Ellison emphasized that he and Smith were pushing the issue to the forefront in hopes that others will be energized by the idea. “When I spent four years in the state Legislature and 12 years in Congress, I learned something, and that is: Your chances at succeeding in passing legislation dramatically improve once you decide to act,” he said.

In response to the Supreme Court hearing on access to the drug, Minnesota Citizens Concerned for Life Executive Director Cathy Blaeser said President Joe Biden had rolled back safety protocols regarding mifepristone.

“And the risks only increase when the drug is sent through the mail without a doctor’s visit,” she wrote in a statement advocating for the court to act. “We hope that the Court will recognize these dangers and act in the best interest of women and their unborn children.”

Since the 2022 U.S. Supreme Court ruling reversing Roe v. Wade, Minnesota has become an island of access for those seeking abortions in the Upper Midwest. North and South Dakota and Wisconsin have since banned most abortions.

In 2022, Democrats in Minnesota won narrow majorities in both the Senate and House in part because of anger over the reversal of Roe, which had for 50 years ensured abortion was legal nationwide. The DFL majorities and Gov. Tim Walz acted swiftly in 2023 to codify the right to an abortion in Minnesota law.

This session they’re considering asking voters in the 2026 election whether they want to further protect the legal right to abortion with an amendment to the state’s Constitution.

Abortions in Minnesota increased by 20% in 2022, according to data released by the state Department of Health last June. More than 16% of the 12,175 abortions involved women who traveled here from states where abortion is banned or restricted, doubling the total from the previous year. A majority of those abortions — 61% — were performed with medications rather than surgery.

Star Tribune staff Writer Briana Bierschbach contributed to this story.