Democrats eye take down of federal provision barring abortion by mail

Senate Democrats are looking to strike a provision in a federal law that bars materials related to abortion from being transmitted through the mail, warning that it could be wielded by a Republican president and Congress to ban abortions nationally. 

Sen. Tina Smith, (D-Minn.), is leading an effort to revise the 1873 Comstock Act, repealing the piece making the mailing of abortion materials illegal. 

"There is a very clear, well-organized plan afoot by the MAGA Republicans to use Comstock as a tool to ban medication abortion, and potentially all abortions," Smith said in a statement to the Washington Post, which first reported on the bill. "My job is to take that tool away."

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Sen. Tina Smith is hoping to strip a controversial abortion provision from the 1800s-era Comstock Act.  (Getty Images)

However, the Department of Justice (DOJ) has maintained that the law doesn't outright ban drugs that can induce abortion from being sent through mail, because intent is not always known. "The mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully," Christopher Schroeder, Assistant Attorney General for the Office of Legal Counsel in the DOJ concluded in a 2022 opinion. 

Such a measure is likely to receive full Democratic support if it scores a vote on the Senate floor. Senate Majority Leader Chuck Schumer, D-N.Y., has not said whether this measure will be included in the parade of reproduction-related votes that have been scheduled in the summer months. 

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Mifepristone is one of the medications used to facilitate abortions.  (AP Photo/Allen G. Breed)

Schumer did not immediately provide comment to Fox News Digital.

Smith's bill could also manage to pick up some Republican support from moderate Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, who have joined their Democratic counterparts on abortion and reproduction related votes in the past. 

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Schumer has teed up several reproductive votes.  (REUTERS/Amanda Andrade-Rhoades/File Photo)

Despite having a good outlook for Senate support, the measure would not be expected to be brought to a vote in the House or have enough votes to pass. 

Democrats in the Senate have concentrated their legislative efforts in the upper chamber on safeguarding access to contraception, in vitro fertilization (IVF), and abortion ahead of a recess-heavy fall schedule. 

So far, votes have occurred for Democrat-backed bills to ensure accessibility of both birth control and IVF procedures, but both procedural hurdles have failed, as Republicans opposed the broad nature of both bills. 

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The overturn of Roe v. Wade was incredibly controversial. (AP Photo/Anna Johnson)

In the next month, Schumer is expected to schedule a vote on a bill that would codify Roe v. Wade and the federal right to an abortion. Such a measure is similarly expected to fail. 

The series of votes on the subject come as Democrats fight to retain their very vulnerable Senate majority in the November elections. Five incumbent Democrats are embroiled in tough elections in the most competitive Senate races of the cycle, according to non-partisan political handicapper the Cook Political Report, which rates three as "Toss Ups" and two as only "Lean Democratic."

Julia Johnson is a politics writer for Fox News Digital and Fox Business, leading coverage of the U.S. Senate. She was previously a politics reporter at the Washington Examiner. 

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