Opinion | The Comstock Act: Trump’s Allies Say They’ll Enforce It

Conservatives know this would be enormously unpopular, which is probably why, when they talk about Comstock at all, they often refer to it by its criminal code numbers rather than its common name. (“I think the pro-life groups should keep their mouths shut as much as possible until the election,” said Mitchell.) Democrats, by contrast, need to be doing everything possible to make “Comstock” a household word. That’s why they should champion a bill introduced by Senator Tina Smith of Minnesota on Thursday to overhaul the Comstock Act. And it’s why President Biden would be wise to act on a petition from the Foundation for Individual Rights and Expression to posthumously pardon one of Comstock’s high-profile victims.

Many were shocked when the Supreme Court overturned Roe two years ago, but as Smith, the former vice president of Planned Parenthood of Minnesota, told me, they shouldn’t have been, because the right made no secret of its objectives. There is something similar going on with Comstock. “Believe them when they tell us what they want to do, because they will do it if they’re given half a chance,” she said.

But getting people to believe them is a challenge. A substantial number of voters in swing states don’t even understand the role Trump played in Roe’s demise: According to a New York Times poll released last month, 17 percent of them blame Biden, since the ruling happened during his presidency. In Rolling Stone, Anat Shenker-Osorio, a senior adviser to the progressive Research Collaborative, wrote that in surveys and focus groups, disaffected Democrats and swing voters are appalled when they learn of Project 2025’s agenda, including on abortion. But a mere 21 percent of them think Republicans will actually carry it out it if they take back power. And they wonder, if the danger of Project 2025’s policies is so acute, “why Democrats don’t seem to be speaking out about them or fighting back.”

A messaging bill like Smith’s Stop Comstock Act cannot on its own awaken the electorate to what’s in store for us if a second Trump victory sweeps his emboldened Christian nationalist allies into power. But it can be part of a campaign to communicate the election’s stakes. Smith knows that her bill won’t get 60 votes to overcome a filibuster; this is a Senate, after all, where all but two Republicans voted against the Right to Contraception Act this month. But, she says, her bill is “such a clear organizing tool for showing people, including people who live in states like mine, or Nevada, for example,” that even if their reproductive rights are protected now by state law, a future Trump administration could “wipe that away.”

While the Stop Comstock Act may never reach Biden’s desk, there’s something he can do this moment to strike a public blow against the zombie law: pardon D.M. Bennett, a freethinking publisher and one of Comstock’s nemeses, who in 1879 was sentenced to 13 months of hard labor for mailing an anti-marriage tract called “Cupid’s Yokes.” Petitioning the Biden administration, Robert Corn-Revere, chief counsel to the Foundation for Individual Rights and Education, wrote, “By granting this pardon, the president would help right the injustice resulting from D.M. Bennett’s wrongful prosecution and conviction, and at the same time send the important message that Victorian-era laws should not be revived to undermine Americans’ individual rights.”