Up until the advent of Donald Trump in American politics, there had been a pervasive attitude among many politicians that there were certain norms and traditions that had been established and long-followed, so there was no need to codify any of them into actual laws. One of these was the belief among Democrats that Roe v. Wade was settled law and that as time went on it had become increasingly impossible to even consider that it would ever be overturned. The judiciary had staked out certain rights, so there was no need for Congress to enact the same rights -- doing so would actually be redundant.

This way of thinking, obviously, was wrong. It should have been obvious -- and it was, to the pro-choice activists. The anti-abortion side, for decades, had been racking up incremental wins in state after state, imposing increasingly-tough hurdles for women to jump over in order to exercise what the Supreme Court had said was their right. Democrats mostly looked the other way while this was happening.

Part of the problem was that abortion didn't become a truly partisan issue until rather recently. Throughout the 1980s and 1990s, there were pro-choice Republican politicians as well as anti-choice Democrats. There was also a large contingent of Democrats who shied away from the issue, perhaps giving it lip service during a political campaign but mostly preferring not to talk about it. The danger was abstract and hypothetical, after all -- oh, sure, some future Supreme Court could overturn Roe v. Wade, but it wasn't seen as being in any sort of acute or immediate danger. It wasn't the number-one issue for many voters, to put this another way, therefore Democrats were free to largely ignore it (or just mention it briefly during campaign season).

Relying on the judiciary to continue to protect abortion rights was, obviously, either misguided or shortsighted. Now that the court has thrown Roe out with the Dobbs ruling, the issue has come raging back and may in fact be one of the central issues in the 2024 election.

It didn't have to be this way, of course. Congress could have acted -- at any time during the half-century when Roe was in force -- by codifying the exact provisions and limitations on abortion contained within the Roe decision. The House and Senate could have passed a bill and put it on the president's desk to sign and then the provisions of Roe would no longer be open to any judicial interpretation under the sun, they would be written down in black and white.

The Supreme Court could have declared such a law unconstitutional after it passed, but that would have been a much higher bar for them to cross than just reversing Roe. The Dobbs decision was, in essence, the court saying: "Whoops, we got it wrong back in the 1970s, here's what that court should have ruled." But when Congress and the president enact a law, it makes it harder (both legally and politically) to declare the law unconstitutional and throw it out.

I say all of this as a preamble to the real subject of today's column, which is an incredibly old and obscure federal law that has been on the books for 150 years and which now cries out for legislative action. Known as the "Comstock Act" (or "Law," or "Laws"), this is a vestige of 19th-century Puritanism that has never explicitly been repealed in its entirety. And since it is still officially on the books, it is technically still federal law. Which was (rather ominously) pointed out during the recent arguments for yet another abortion case before the Supreme Court (the one dealing with one of the drugs in the standard medication abortion prescription). The two most conservative justices on the court openly flirted with citing the Comstock Act in order to take one of the abortion drugs off the market for everyone.

One senator with a rather unique perspective is poised to fight back, which is good to see. Senator Tina Smith from Minnesota -- who is also "a former Planned Parenthood executive" -- is ready to lead the charge to toss out the remaining outdated provisions of the Comstock Act of 1873. From an article she wrote today for the New York Times:

Let me take a step back and explain how ridiculous it is that we're even talking about this legislative relic today. The Comstock Act hasn't been broadly enforced since the 1930s. The Biden administration considers it utterly irrelevant. Many legal experts consider it dead letter law. And once you know its back story, it becomes clear why no one has paid much attention to it in nearly a century.

Back in the 1860s, a former Civil War soldier from rural Connecticut named Anthony Comstock moved to New York City for work. He was shocked and appalled by what he found. Advertisements for contraception! Open discussions of sexual health! It all struck Comstock as terribly lewd and anti-Christian.

So he made it his mission to clean up society, creating the loftily named New York Society for the Suppression of Vice and gathering evidence for police raids on places that distributed material he thought was obscene or promoted indecent living. In the early 1870s he took his crusade to Washington, lobbying for federal legislation that would empower the post office to search for and seize anything in the mail that met Comstock's criteria for being "obscene," "lewd" or just plain "filthy." Morality, as determined by Comstock, would be the law of the land, and Comstock himself would be its enforcer, appointed by Congress as a special agent of the post office.

In a fit of Victorian puritanism, Congress passed the Comstock Act into law. But it quickly became apparent that Comstock's criteria were unworkably vague. In its broad wording, the law not only made it illegal to send pornography through the mail, it also outlawed the sending of medical textbooks for their depictions of the human body, personal love letters that hinted at physical as well as romantic relationships, and even news stories.

The whole thing was very silly and impracticable, and that's why the Comstock Act was relegated to the dustbin of history.

It also outlawed sending contraceptive devices or substances through the mails, but that part of it was tossed out by an act of Congress in 1971, after a Supreme Court decision legalized contraceptives. But the rest of it needs to go too. Because as we've all seen, relying on the judiciary to say: "Well that was deemed unconstitutional decades ago" is no longer good enough.

Democrats probably won't be able to overturn the Comstock Act with the current composition of Congress, and some even worry that making an attempt to overturn it would only draw attention to it and perhaps bolster the argument that this arcane law should still be followed. But it's that kind of thinking that led to the inaction on Roe, and to where we find ourselves now.

I applaud Senator Smith for her effort, and will leave you today with the actual text of the Comstock Act as it stands today. This is from federal law, and is included in its entirety so you can see how ridiculously outdated it truly is [Note: it is written in legalese and begins with a long list before it gets to the actual verb in the sentence: "...is declared to be nonmailable matter..."]:

Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing --

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001(e) of title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

The term "indecent", as used in this section includes matter of a character tending to incite arson, murder, or assassination.

-- Chris Weigant

Follow Chris on Twitter: @ChrisWeigant