[Congressional Record Volume 142, Number 29 (Wednesday, March 6, 1996)]
[Senate]
[Pages S1598-S1601]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LAUTENBERG (for himself, Ms. Moseley-Braun, Mrs, Boxer, 
        Ms. Snowe, Mr. Simon, Mr. Kerry, and Mr. Feingold):
  S. 1592. A bill to strike the prohibition on the transmission of 
abortion-related matters, and for other purposes; to the Committee on 
the Judiciary.


                   the comstock clean-up act of 1996

 Mr. LAUTENBERG. Mr. President, on behalf of Senators Snowe, 
Moseley-Braun, Boxer, Feingold, Kerry, Simon, and myself, today I am 
introducing legislation, the Comstock Clean-up Act, to repeal a law 
that prohibits the transmission of abortion-related information over 
the Internet and through the mail.
  Mr. President, freedom of speech is among the most fundamental of 
democratic rights. Yet the recently-enacted telecommunications bill 
include a little-noticed provision that directly violates this basic 
principle.
  The provision applies to the Internet an archaic law known as the 
Comstock Act. The Comstock Act prohibits the interstate transport of 
materials that provide information about abortion, or the interstate 
transport of drugs or devices that are used to perform abortions. These 
prohibitions were first enacted in 1873, and they have been on the 
books ever since. Under the law, first-time violators are subject to a 
fine of up to $250,000 and five years in prison.
  Mr. President, these prohibitions almost certainly are 
unconstitutional. And, fortunately, President Clinton has said that his 
Justice Department will not enforce them.

[[Page S1599]]

  Yet many users of the Internet are concerned, and understandably so. 
After all, Bill Clinton is a pro-choice President. But what if Pat 
Buchanan wins the Presidency? Or Bob Dole? Zealous prosecutors in their 
administrations might well use the new law to harass people who are 
pro-choice, and to chill speech about abortion over the Internet.
  In other words, if you distribute information about abortion over the 
Internet today, there's no assurance that you won't be prosecuted next 
year.
  Mr. President, anyone prosecuted under this law almost certainly 
would be able to successfully challenge its constitutionality. Yet who 
wants to be the one innocent American who's forced to defend hereself 
against the power of the U.S. Government? The costs of defending 
oneself in a criminal case often are enormous. And many Internet users 
will be unwilling to risk being a test case. Current law therefore 
threatens to have a severe chilling effect on abortion-related speech.
  Over the past few years, numerous pro-choice groups, such as the 
National Abortion and Reproductive Rights Action League and Planned 
Parenthood, have established home pages on the world wide web. These 
home pages provide important information about birth control, women's 
health, and abortion.
  Women can also obtain information about clinics in their area over 
the Internet. Within the last month and a half alone, over 1,500 people 
have accessed such an Internet site. Under this new law, these 1,500 
persons potentially could have been arrested, fiend up to $250,000, or 
sent to prison for five years.
  Mr. President, this law adversely affects people on both sides of the 
abortion issue. Groups opposed to abortion are at risk when they mail 
information about abortion providers, just as are those who support 
abortion rights. All Americans should be able to freely discuss 
abortion-related matters, no matter how they might feel about this 
issue.
  So this bill would repeal the prohibition against the interstate 
transportation of drugs and articles that produce abortions and the 
dissemination of abortion-related information across State lines. It 
also would repeal a prohibiton against mailing information about 
abortions, abortion providers and articles or drugs that produce 
abortions.
  Mr. President, I hope my colleagues on both sides of the aisle and 
both sides of the abortion debate join me in support of this 
legislation and I ask unanimous consent that a copy of the bill, and 
related materials, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1592

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Comstock Clean-up Act of 
     1996''.

     SEC. 2. IMPORTATION OR TRANSPORTATION OF CERTAIN ABORTION-
                   RELATED MATTERS.

       Section 1462 of title 18, United States Code, is amended by 
     striking subsection (c).

     SEC. 3. MAILING OF ABORTION-RELATED MATTERS.

       Section 1461 of title 18, United States Code, is amended by 
     striking ``; and--'' and all that follows through ``Is 
     declared'' and inserting ``is declared''.
                                                                    ____



                               Office of the Attorney General,

                                Washington, DC., February 9, 1996.
     Hon. Newt Gingrich,
     Speaker of the House, House of Representatives, Washington, 
         DC.
       Dear Mr. Speaker: On February 7, 1996, a lawsuit was filed 
     challenging the constitutionality of a provision of 18 U.S.C. 
     Sec. 1462, as amended by section 507(a)(1) of the 
     Telecommunications Act of 1996. Sanger, et al. v. Reno, Civ. 
     No. 96-0526 (E.D.N.Y.). Yesterday, a second lawsuit was 
     filed, raising the same challenge to Sec. 1462 along with 
     claims that several other provisions of the 
     Telecommunications Act are unconstitutional. American Civil 
     Liberties Union, et al. v. Reno, Civ. No. 96-963 (E.D. Pa.). 
     This letter relates solely to the claims regarding Sec. 1462, 
     as amended. Plaintiffs in both cases allege that Sec. 1462, 
     as amended, violates the First Amendment insofar as it 
     prohibits the interstate transmission of certain 
     communications regarding abortion via common carrier or via 
     an interactive computer service.
       This is to inform you that the Department of Justice will 
     not defend the constitutionality of the abortion-related 
     speech provision of Sec. 1462 in those cases, in light of the 
     Department's longstanding policy to decline to enforce the 
     abortion-related speech prohibitions in Sec. 1462 (and in 
     related statutes, i.e., 18 U.S.C. Sec. 1461 and 39 U.S.C. 
     Sec. 3001) because they are unconstitutional under the First 
     Amendment.
       In 1981, Attorney General Civiletti informed the Speaker of 
     the House and the President of the Senate that it was the 
     policy of the Department of Justice to refrain from enforcing 
     similar speech prohibitions in two cognate statutes--39 
     U.S.C. Sec. 3001 and 18 U.S.C. Sec. 1461--with respect to 
     ``cases of truthful and non-deceptive documents containing 
     information on how to obtain a lawful abortion.'' Letter to 
     Attorney General Benjamin R. Civiletti to the Hon. Thomas P. 
     O'Neill, Jr., at 2 (Jan. 13, 1981). According to the Attorney 
     General, there was ``no doubt'' that those statutes were 
     unconstitutional as applied to such speech. Id. at 1. The 
     Attorney General left open the possibility that the two 
     statutes might still be applied to certain abortion-related 
     commercial speech. Id. at 3. Two years later, the Supreme 
     Court held that Sec. 3001 cannot constitutionally be applied 
     to commercial speech concerning contraception, at least not 
     where the speech in question is truthful and not 
     misleading. Bolger v. Youngs Drug products Corp., 463 U.S. 
     60 (1983). The holding in Bolger would apply equally with 
     respect to abortion-related commercial speech. See Bigelow 
     v. Virginia, 421 U.S. 809 (1975).
       Section 1462 is subject to the same constitutional defect 
     as Sec. Sec. 1461 and 3001 with respect to its application to 
     abortion-related speech and information.\1\ As a result of 
     the Department's conclusion that prosecution of abortion-
     related speech under Sec. 1462 and related statutes would 
     violate the First Amendment, the Department's longstanding 
     policy has been to decline to enforce those statutes with 
     respect to that speech. What is more, we are not aware of any 
     reported decision reflecting a prosecution of abortion-
     related speech under Sec. 1462.
       Nothing in the Telecommunications Act provides any reason 
     to alter the Department of Justice's nonenforcement policy. 
     In his signing statement yesterday, the President stated:

       I . . . object to the provision in the Act concerning the 
     transmittal of abortion-related speech and information. 
     Current law, 18 U.S.C. 1462, prohibits transmittal of this 
     information by certain means, and the Act would extend that 
     law to cover transmittal by interactive computer services. 
     The Department of Justice has advised me of its longstanding 
     policy that this and related abortion provisions in current 
     law are unconstitutional and will not be enforced because 
     they violate the First Amendment. The Department has reviewed 
     this provision of S. 652 and advises me that it provides no 
     basis for altering that policy. Therefore, the Department 
     will continue to decline to enforce that provision of current 
     law, amended by this legislation, as applied to abortion-
     related speech.

       The principal function of Sec. 1462 is to prohibit the 
     interstate carriage of ``obscene, lewd, lascivious, . . . 
     filthy . . . [and] indecent'' materials. See Sec. 1462(a). 
     The Supreme Court has construed this prohibition to be 
     limited to materials that meet the test of ``obscenity'' 
     announced in Miller v. California, 413 U.S. 15 (1973).\2\ 
     Congress's express purpose in enacting the amendment to 
     Sec. 1462 in Telecommunications Act Sec. 507 was to 
     ``clarify[]'' that obscene materials cannot be transmitted 
     interstate via interactive computer services.\3\ In this 
     respect, Sec. 1462 and its amendment in Sec. 507 are 
     constitutionally unobjectionable, and the Department will 
     continue to enforce Sec. 1462 with respect to the transmittal 
     of obscenity.
       However, Sec. 1462 also prohibits the interstate 
     transmission of certain communications regarding abortion. As 
     amended by Sec. 507 of the Telecommunications Act, Sec. 1462 
     provides, in pertinent part, that it shall be a felony to:

     knowingly use[] any express company or other common carrier 
     or interactive computer service . . .  for carriage in 
     interstate or foreign commerce [of] . . .
       (c) any . . . written or printed card, letter, circular, 
     book, pamphlet, advertisement, or notice of any kind giving 
     information, directly or indirectly, where, how, or of whom, 
     or by what means any [drug, medicine, article, or thing 
     designed, adapted, or intended for producing abortion] may be 
     obtained or made.

     Thus, on its face, Sec. 1462 prohibits the use of an 
     interactive computer service for ``carriage in interstate . . 
     . commerce'' of any information concerning ``any drug, 
     medicine, article, or thing designed, adapted, or intended 
     for producing abortion.'' \4\
       It plainly would be unconstitutional to enforce Sec. 1462 
     with respect to speech or information concerning abortion, 
     because the restriction on abortion-related speech is 
     impermissibly content-based. This conclusion is confirmed 
     by the judicial and Executive Branch treatment of similar 
     prohibitions on speech concerning abortion and 
     contraception, contained in two cognate statutes, 39 
     U.S.C. Sec. 3001 and 18 U.S.C. Sec. 1461. Section 3001 
     provides that abortion and contraception-related speech is 
     ``nonmailable''; and Sec. 1461 makes such mailing subject 
     to criminal sanctions. In 1972, a district court declared 
     that Sec. 3001 was unconstitutional insofar as it rendered 
     abortion-related speech ``nonmailable.'' Atlanta Coop. 
     News Project v. United States Postal Serv., 350 F. Supp. 
     234, 238-39 (N.D. Ga. 1972).\5\ The next year, another 
     district court declared both Sec. 3001 and Sec. 1461 
     unconstitutional as applied to noncommercial

[[Page S1600]]

     speech concerning abortion and contraception. Associated 
     Students for Univ. of California at Riverside v. Attorney 
     General, 368 F.Supp. 11, 21-24 (C.D. Calif. 1973). As the 
     Attorney General later explained to the Congress, the 
     Solicitor General declined to appeal the decisions in 
     Atlanta Coop. News Project and Associated Students ``on 
     the ground that 18 U.S.C. Sec. 1461 and 39 U.S.C. 
     Sec. 3001(e) were constitutionally indefensible'' as 
     applied to abortion-related speech. See Letter of Attorney 
     General Benjamin R. Civiletti to the Hon. Thomas P. 
     O'Neill, Jr., at 2 (Jan. 13, 1981). And, as explained 
     above, in 1981 the Attorney General informed the Congress 
     that the Department of Justice would decline to enforce 
     Sec. Sec. 1461 and 3001 in cases of truthful and non-
     deceptive documents containing information on how to 
     obtain a lawful abortion.
       Nothing in recent Supreme Court law respecting the First 
     Amendment has affected the conclusions reached by the 
     district courts in Atlanta Coop. News Project and Associated 
     Students, the 1981 opinion of Attorney General Civiletti, or 
     the Supreme Court's decision in Bolger. Indeed, the Supreme 
     Court on several recent occasions has strongly reaffirmed the 
     principle that the First Amendment, subject only to narrow 
     and well-understood exceptions not applicable here, ``does 
     not countenance governmental control over the content of 
     messages expressed by private individuals.'' Turner 
     Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2458-59 
     (1994) (citing R.A.V. v. City of St. Paul, 505 U.S. 377 
     (1992); Texas v. Johnson, 491 U.S. 397 (1989)).
       In the Sanger case, Judge Sifton yesterday denied 
     plaintiffs' motion for a temporary restraining order after 
     the United States Attorney represented that the Department's 
     policy is to decline to enforce the pertinent provision of 
     Sec. 1462. Judge Sifton further ruled that a three-judge 
     court hearing on any dispositive motions will be convened 
     next month, after briefing. In the ACLU case before Judge 
     Buckwalter, the Government is due to respond to a motion for 
     a TRO on February 14, 1996. In accordance with the practice 
     of the Department, I am informing the Congress that in 
     neither case will the Department of Justice defend the 
     constitutionality of the provision of Sec. 1462 that 
     prohibits speech concerning abortion.
           Sincerely,
                                                       Janet Reno.

                               Footnotes

       \1\ The only material difference between Sec. 1462 and the 
     cognate prohibitions in Sec. Sec. 1461 and 3001 is that 
     Sec. 1462 regulates interstate ``carriage'' of information by 
     common carrier, rather than dissemination of that information 
     through the mail. This distinction is not material to the 
     constitutional issue in this context.
       \2\ See Hamling v. United States, 418 U.S. 87, 114 (1974); 
     United States v. Orito, 413 U.S. 139, 145 (1973), United 
     States v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123, 
     130 n.7 (1973).
       \3\ The Conference Committee on the Telecommunications Act 
     noted that Sec. 507 is intended to address the use of 
     computers to sell or distribute ``obscene'' material. Joint 
     Explanatory Statement of the Committee of Conference at 77, 
     reprinted in 142 Cong. Rec. H1130 (daily ed. Jan. 31, 1996).
       \4\ The Conference Committee Report on the 
     Telecommunications Act explicitly notes that the prohibitions 
     in Sec. 1462 apply regardless of whether the purpose for 
     distributing the material in question is commercial or non-
     commercial in nature. Joint Explanatory Statement of the 
     Committee of Conference at 77, reprinted in 142 Cong. Rec. 
     H1130 (daily ed. Jan. 31, 1996).
       \5\ That court did not reach the merits of the challenge to 
     the criminal prohibition in Sec. 1461 because the plaintiffs 
     in that case were not threatened with prosecution. Id. at 
     239.
                                                                    ____

                                                   NARAL Promoting


                                         Reproductive Choices,

                                    Washington, DC, March 6, 1996.
     Hon. Frank Lautenberg,
     U.S. Senate,
     Washington, DC.
       Dear Senator Lautenberg. I am writing to lend NARAL's 
     strong support to legislation your introducing today which 
     seeks to delete the ban on abortion-related speech from the 
     1873 Comstock Law governing the importation or transportation 
     of obscene matters. A little noticed provision in the 
     recently passed 1996 Telecommunications Act resurrects and 
     expands the 123 year old law, making it a federal crime to 
     use interactive computer systems to provide or receive 
     information about abortion.
       As an organization committed to ensuring that American 
     women have access to all information relating to reproductive 
     health care services, we and other pro-choice organizations 
     have filed a lawsuit in U.S. District Court in New York to 
     block this criminal ban on abortion related speech on the 
     Internet.
       Millions of Americans use the Internet to communicate with 
     other Americans and to read information on a wide range of 
     topics. The Internet provides an unprecedented opportunity to 
     provide critical information about women's reproductive 
     rights and health. Without swift passage of your legislation, 
     millions of American women could lose access to vital 
     information they need to make informed, responsible decisions 
     about their reproductive health. I applaud your efforts to 
     remove this anachronistic ban on abortion-related speech and 
     your commitment to ensuring that American women have access 
     to vital reproductive health care information.
           Sincerely,
                                                   Kate Michelman,
     President.
                                                                    ____

                                       The Center for Reproductive


                                               Law and Policy,

                                      New York, NY, March 5, 1996.
     Hon. Frank Lautenberg,
     Senate Hart Office Building,
     Washington, DC.
       Dear Senator Lautenberg: On behalf of the Center for 
     Reproductive Law and Policy (CRLP), I am writing to support 
     your effort to repeal the ban on abortion information on the 
     Internet found in 18 U.S.C. 1462(c). CRLP, an independent 
     non-profit legal organization dedicated to preserving and 
     ensuring women's access to reproductive health and rights, 
     represents the plaintiffs in Sanger v. Reno, a federal case 
     challenging this ban.
       18 U.S.C. Sec. 1462(c) is an affront to the First Amendment 
     rights of our plaintiffs, as well as all reproductive health 
     care professionals, women's civil rights activists, students, 
     and particularly women seeking information in order to make 
     comprehensive reproductive health care decisions. 18 U.S.C. 
     1462(c)'s ban on abortion information on the Internet is 
     broad enough to encompass a wide range of activities, 
     including advertisement of abortions services; transmission 
     of chemical formulas for drugs that can be used to induce 
     abortion; purchase or sale of medical equipment used in 
     abortion procedures; and computer bulletin boards or World 
     Wide Web sites that tell women where they can obtain 
     abortions.
       While anti-choice forces promote coercive so-called 
     ``informed consent'' laws requiring health care professionals 
     to recite a litany of unwanted and misleading information to 
     women seeking abortions, they simultaneously enact provisions 
     such as 18 U.S.C. Sec. 1462(c) which deny women access to 
     real health care information about abortion.
       18 U.S.C. Sec. 1462(c) must be repealed. Not only does it 
     threaten the First Amendment, jeopardize free flow of medical 
     information, and exclude issues critical to women from new 
     communications technology, it also reflects a broader agenda 
     to drive abortion underground by characterizing this health 
     care as an illicit procedure.
       For these reasons, we applaud your efforts to repeal 
     Sec. 1462(c) as a necessary step toward safeguarding women's 
     health and providing women the information they need to make 
     thoughtful and responsible health care decisions.
           Sincerely,
     Kathryn Kolbert.
                                                                    ____

                                                Planned Parenthood


                                       of New York City, Inc.,

                                  New York, NY, February 27, 1996.
     Hon. Frank R. Lautenberg,
     U.S. Senate, Senate Hart Office Building, Washington, DC.
       Dear Senator Lautenberg: We thank you for introducing 
     critical legislation to repeal the ``abortion gag rule'' 
     portion of the Telecommunications Act.
       We are gratified that pro-choice leaders like you are 
     battling this misguided attempt to turn back the clock 80 
     years--to 1916, when the Comstock Law was used to jail my 
     grandmother and Planned Parenthood founder Margaret Sanger. 
     It is shocking to realize that I, too, could be jailed for 
     violating the same law, having published on the Internet our 
     brochure ``How to Find A Safe Abortion Clinic.'' At times 
     like these it is reassuring to know that we can count on some 
     voices of reason in Congress: those who understand that the 
     freedom to speak about sexual and reproductive health issues, 
     including information on safe abortion services are rights 
     protected by our Constitution.
       Planned Parenthood of New York City deeply appreciates your 
     courageous stance to protect and advance the rights of all 
     Americans. We stand ready to help you in any way we can, and 
     hope you will call on us to do so.
           Sincerely,
                                              Alexander C. Sanger,
     President.
                                                                    ____

                                           California Abortion and


                            Reproductive Rights Action League,

                             San Francisco, CA, February 26, 1996.
     Senator Frank Lautenberg,
     Hart Office Building,
     Washington, DC.
       Dear Senator Lautenberg: On behalf of the California 
     Abortion and Reproductive Rights League-North (CARAL-North), 
     I am writing in support of legislative efforts to amend the 
     Comstock Act, 18 U.S.C. 1462, by striking subsection (c) 
     dealing with the transportation of certain abortion-related 
     matters.
       CARAL-North is one of the plaintiffs in Sanger v. Reno, the 
     lawsuit challenging recently enacted restrictions on the 
     dissemination of information and material about abortion. 
     CARLA-North maintains a site on the World Wide Web and uses 
     the Internet to provide information about abortion and 
     reproductive rights--activities proscribed under the Comstock 
     Act as amended by the telecommunications bill recently passed 
     by Congress and signed into law by President Clinton.
       CARAL-North believes that the protection of women's health 
     and women's rights requires the greatest possible 
     availability of information about where, when and how women 
     can obtain safe and legal abortions. Legislation like 18 
     U.S.C. 1462(c)--which restricts or prohibits the spread of 
     such information and the transport of materials used

[[Page S1601]]

     in performing legal, accepted medical procedures--has no 
     place in this society.
       CARAL-North commends your work to protect women's rights 
     and health by removing this barrier to reproductive health, 
     and thanks you.
           Sincerely,
                                                   Ann G. Daniels,
     Executive Director.
                                                                    ____



                                        The Feminist Majority,

                                     Arlington, VA, March 5, 1996.
     Hon. Frank Lautenberg,
     U.S. Senate, 506 Hart Senate Office Building, Washington, DC.
       Dear Senator Lautenberg: On behalf of the Feminist 
     Majority, I am writing to support your effort to repeal the 
     ban on abortion information on the Internet found in 18 
     U.S.C. 1462(c). The Feminist Majority is one of the 
     plaintiffs in the Sanger v. Reno case, a federal case 
     challenging this ban.
       Use of 18 U.S.C. 1462(c) is an affront to the First 
     Amendment rights of the Feminist Majority and the other 
     plaintiffs, as well as all reproductive health care 
     professionals, women's civil rights activists, students, and 
     particularly women seeking information in order to make 
     comprehensive reproductive health care decisions. 18 U.S.C. 
     1462(c) is broad enough to encompass a wide range of 
     activities, including advertisement of abortion services over 
     the Internet; Internet transmission of chemical formulas for 
     drugs that can be used to induce abortion; purchase or sale 
     of medical equipment used in abortion procedures over the 
     Internet; and computer bulletin boards or World Wide Web 
     sites that tell women where they can obtain abortions.
       While anti-choice forces promote coercive so-called 
     ``informed consent'' laws requiring health care professionals 
     to recite a litany of unwanted and misleading information to 
     women seeking abortions, they simultaneously promote 
     provisions such as 18 U.S.C. 1462(c) which deny women access 
     to real health care information about abortion. The ban must 
     be repealed not only because it threatens the First 
     Amendment, jeopardizes the free flow of medical information, 
     and excludes issues critical to women from new communications 
     technology, but also because it is part of a broader agenda 
     to drive abortion underground by characterizing this health 
     care as an illicit procedure.
       For these reasons, we applaud your efforts to repeal 
     Section 1462(c) with the Freedom to Choose Internet 
     Information Act of 1996 as a necessary step toward 
     safeguarding women's health and providing women the 
     information they need to make thoughtful and responsible 
     health care decisions. Thank you for your courage in 
     undertaking this repeal effort.
           Sincerely,
                                                    Eleanor Smeal,
                                                President.
                                 ______