Why Democrats are suddenly so concerned about a law from 1873

On Thursday, Senator Tina Smith of Minnesota launched the next phase of Democrats’ push to protect abortion rights. She did so by introducing legislation to roll back the 1873 law that Democrats fear Republicans would use to ban medication abortion.

Smith is the only Senator who has worked at a Planned Parenthood clinic and she quickly became Senate Democrats’ leading policymaker on protecting abortion rights after the Dobbs v Jackson decision that killed Roe v Wade.

Her new legislation would repeal the Comstock Act of 1873, which targeted the mailing of contraceptives, pornography and anything “intended for producing abortion, or for any indecent or immoral use.” Comstock has largely not been enforced for the past 100 years, particularly after Roe. But now Democrats are worried it could make a legislative return.

“I think it's important for Americans to understand that Trump and his MAGA advisors have a plan to use this 150-year-old archaic law to deny access to medication abortion and potentially all abortion,” Smith told The Independent.

“I don't actually think that's legal, but they do,” she added. “I think the threat of them misapplying this law is a clear threat.”

The legislation to roll back the Comstock law is not likely to pass, given that Democrats have only 51 votes in the Senate and Republicans control the House of Representatives.

Rather, Smith’s legislation serves two purposes: Firstly, it lays out what type of action Democrats would take if they hold the White House and Senate and flip the House; and secondly, it sends out a warning about the type of policies that conservative circles are crafting after the death of Roe.

Comstock received increased attention earlier this year when the Supreme Court heard