The Comstock Act: How a Law From the 1800s Threatens Medication Abortion Today

Medication abortion accounted for almost two-thirds of clinician-provided abortions in states without bans in 2023, according to a new study from the Guttmacher Institute — a 10% increase from 2020. Although the research didn’t include self-managed medication abortion or pills mailed to people in banned states, Guttmacher policy analysts estimate that medication abortion is most likely even more crucial to abortion access across the U.S. than these numbers demonstrate. “Clearly [medication abortion] has been pivotal in helping ensure that people who want to have abortions are able to get abortions,” said Kirsten Moore, director of the Expanding Medication Abortion Access Project, an advocacy organization. Anti-abortion extremists have taken note and are doing everything they can to block access to it, from passing state legislation in Louisiana reclassifying mifepristone as a controlled substance to reviving antiquated laws from the 1800s.

The Comstock Act, a federal law passed in 1873, bans the mailing and receiving of “obscene” material as well as articles used for contraception and abortion. Named after an anti-vice crusader who championed it, over the years it gradually become a “zombie” law, meaning that while it’s never been repealed, the law is rarely used and is considered largely unenforceable. It has never been utilized to prosecute the use of medication abortion or the mailing of abortion-related material.

Until now. Enforcement of the Comstock Act is part of Project 2025, the Trump administration’s blueprint for rolling back basic civil and human rights, including access to safe and comprehensive reproductive health care. Although Congress, the courts, and the Department of Justice during the Biden administration have all clarified that the Comstock Act doesn’t apply to FDA-approved medication, advocates are concerned that the Trump administration will use it as justification to go after health care providers who prescribe mifepristone and misoprostol, the two drugs used in medication abortion, via telehealth. They could face up to five years in prison for one violation of the law, and up to 10 years for each subsequent violation.

But advocates are fighting back. On March 12, Sen. Tina Smith, D-Minn., reintroduced the Stop Comstock Act, with U.S. Rep. Becca Balint, D-Vt., introducing companion legislation in the House. The bill would repeal harmful language in the Comstock Act that could be used by the Trump administration to prohibit the distribution through the mail of mifepristone and other drugs used in medication abortions, contraception, medical equipment used in abortions, along with educational material related to sexual health.

During the Biden administration, when anti-abortion extremists began to talk about resurrecting the Comstock Act, it seemed unthinkable that the Department of Justice would be utilized in this way. But under Trump, “this Department of Justice could decide: ‘Of course we think it applies to FDA-approved medication,’” said Moore. In addition, “the concern from other repro health advocates is that it could be used also to apply to the instruments that are used for in-clinic procedures. The opposition is clearly locked onto ‘We need to put mifepristone back under lock and key,’ and so enforcing the Comstock Act is a way for them to do that.”

Although it’s unlikely that a Republican-controlled Congress will pass this legislation, “It’s important to show the fight,” said Nourbese Flint, president of All Above All*, an advocacy organization that works at the state and federal level to create proactive abortion justice policy and legislation. But “the real conversation people should be having is with their state legislators and governors about how they can protect their constituents if the Trump administration and the Department of Justice start using Comstock and weaponizing it against people. It’s absolutely imperative that governors, state legislators, and [state attorneys general] be thinking right now on how to protect their providers and their birthing folks.”

Medication abortion, which accounts for 63% of all clinician-provided abortions in states without abortion bans, can be prescribed at an in-person clinic visit, or via telemedicine from a bricks-and-mortar clinic or an online-only clinic. “The growth of telehealth has really expanded the way people can access abortion care, not only in states with abortion bans but also in states where abortion is legal and accessible,” said Dr. Ushma Upadhyay, professor at University of California, San Francisco in the Department of Obstetrics, Gynecology, & Reproductive Sciences and a member of Advancing New Standards in Reproductive Health (ANSIRH), a research program at the university focused on abortion and reproductive health. “There are so many barriers to abortion even in states where it’s legal, so being able to receive the pills by mail expediated the growth of medication abortion.”

Recent research supports the safety of medication abortion through telehealth, ANSIRH found last year.“People opted into telehealth primarily for being able to have the abortion in the comfort of their own home with people they love,” said Dr. Upadhyay. “Another reason was to increase privacy, and the third reason was cost. Telehealth [abortion] is offered at a much lower cost even than in-person medication abortion care.” Other benefits include not having to travel, being able to take less time off from work, and often a reduction in child care costs. People in banned states can access medication abortion by traveling to another state or receiving the medication from a provider in a shield state — a state with explicit protections preventing providers from being prosecuted. “It’s important to remember that it’s still really difficult for people to access care from banned states, and even though telehealth has removed barriers, they have to do it secretly and worry about criminal risk.”

While no provider has yet been prosecuted under the Comstock Act for distributing the drugs used for medication abortion, “it is available now for [the Department of Justice] to implement if they want to,” said Dr. Upadhyay. As early as 2023, legal fellows at the Heritage Foundation, which drafted Project 2025, were advocating use of the Comstock Act to prosecute providers. And federal judge Matthew J. Kacsmaryk cited the Comstock Act in his April 2023 ruling invalidating the Food and Drug Administration’s 23-year-old approval of mifepristone (the ruling was later overturned by the Supreme Court).

However, trying to apply the Comstock Act “today to the provision of legal abortion care is so radical a concept, and such a legally unsound interpretation of it because it’s never been used to do that,” said Amy Friedrich-Karnik, director of federal policy at the Guttmacher Institute. “And we’ve seen with this administration that they’re willing to push the limits when it comes to things that are legal.”

Advocates point out that the Trump administration could use the Comstock Act to quietly make abortion inaccessible, without actually having to pass a national abortion ban. “We are very likely to see this administration move forward a lot of policies that would severely restrict access to abortion care,” said Friedrich-Karnik. “It is likely, especially in these first months, that they will do so in a way that appears to be less overt because they are aware that the majority of Americans support access to abortion care. So it’s possible they will take actions that don’t seem like national abortion bans, and that are harder potentially to explain [to the general public]. But the impact of those policies absolutely could be to severely restrict access to abortion care across the country, including in states that have taken measures to secure access. It’s going to be a much bigger challenge if they want to try to pass a national abortion ban legislatively in Congress. But, unfortunately, there is a lot the administration can try to do to curtail access even without having to do that.”

Anti-abortion extremists are well aware of this. “We don’t need a federal [abortion] ban when we have Comstock on the books,” Jonathan F. Mitchell, an anti-abortion lawyer, told the New York Times last February. Mitchell drafted S.B. 8, the Texas law effectively banning abortion in the state in 2021, and other pieces of anti-abortion legislation. “There’s a smorgasbord of options,” he said.

Anti-abortion extremists are trying to use the Comstock Act as a nationwide abortion ban, said Sylvia Ghazarian, executive director of the Women’s Reproductive Rights Assistance Project (WRRAP), a national abortion fund. “It’s as simple as that.” Over half the people that WRRAP served last year utilized abortion medication by mail. “It is a lifesaver essentially because of the many challenges they face with child care responsibilities, school, work, lack of transportation, gas issues. The abortion pill by mail is also the most cost effective” form of abortion.

Advocates say they feel a lot of fear and anxiety about not only what will happen with abortion under the Trump administration, but also their own personal safety. “A lot of leaders — we’re easy to find, and the Trump administration and the MAGA disciples have been more willing to use violence against folks and have disregard for all of the norms,” said Flint. Anti-abortion extremists are “going to use every piece of the federal government to weaponize it more around the anti-abortion agenda. Comstock could be one piece; the uptick in pregnancy criminalization could be another. They are testing the boundaries of what the American public will allow, testing the criminal justice system to see how much they can do. All of us should be worried very deeply not only with what’s happening with abortion access but also with pregnancy criminalization and the democracy.”

While no one has yet been convicted for performing an abortion or mailing abortion medication since the Dobbs decision, a New York doctor was indicted by a Louisiana grand jury in February for mailing medication abortion pills which were then used by a minor. Advocates are bracing for more similar cases. “Passing the Stop Comstock Act is necessary to ensure that reproductive health care remains a right, not just in supportive states but for everybody,” said Ghazarian.