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After
NOTUS reported the concerns of some Democrats—“there’s certainly a growing
frustration on the Hill that outside groups are setting us up for a Dobbs
redux,” one House Democratic aide told them—where do these organizations stand
on a Comstock Act repeal? “We are working with legislators on congressional
action that confirms the Comstock Act is off the books,” Rachana Desai Martin,
Center for Reproductive Rights chief government and external affairs officer,
stated in an email. Karen Stone, Planned Parenthood Action Fund vice president
for government relations and public policy, said they are “part of active and
ongoing conversations with coalition partners and members of Congress about
legislative action to address the Comstock laws.” The American Civil Liberties
Union sent a statement, repeating what had been published in the NOTUS story. The
group did not confirm if they currently support the introduction of a Comstock
repeal bill.

Wherever
these groups are on Comstock, it is far short of an explicit commitment to
what some Democrats and abortion advocates want: the introduction of a repeal
bill, well before the election. As it stands, both the NOTUS reporting and sources
I have heard from independently indicate that the resistance Democrats are
getting from the big groups goes like this: by introducing a Comstock repeal
bill, which could lead to debate and a vote, that could give weight to legal arguments
that the Comstock Act could be enforced.

That’s
a valid fear. But it has to be weighed against a much larger risk: that the
Comstock Act could actually be enforced. “The risk is that a Trump administration
comes in, and a conservative anti-abortion Department of Justice interprets the
Comstock Act unlike it’s been interpreted for the past 100 years,” David Cohen,
a law professor at Drexel University and co-author of several law review
articles on Comstock and abortion, told me this week. That interpretation might
go so far, Cohen said, as to claim that the Comstock Act “bans mailing
anything that can produce an abortion, so that includes not only pills, it
includes supplies and equipment.” If that were to happen, then “since no
abortion provider, abortion clinic or even hospital can get anything that
produces an abortion, abortion grinds to a halt everywhere.” Undoubtedly, some would
operate in defiance of the law, but they would do so risking criminal charges.
They may try to mount a legal challenge to the law itself, but they could be fighting
from jail.