In this 2018 photo, mifepristone and misoprostol pills are provided at a Carafem clinic for medication abortions in Skokie, Illinois. Photo: Hooley/Chicago Tribune/Tribune News Service via Getty Images
Anti-abortion groups are deploying a 19th century law named for an "anti-vice crusader" in the ongoing court battles over access to a drug widely used in medication abortion.
The big picture: In the post-Roe era, conservatives have seized on the long-dormant Comstock Act against medication abortion — with a high-profile case involving it potentially headed to the Supreme Court.
- The law isn't "a slam dunk," in court, Mary Ziegler, a law professor at the University of California at Davis, told Axios, but "there's an argument you could make that a court that's conservative enough may buy," she said.
- She called it "sort of … the best way or most realistic way for the anti-abortion movement to get what it wants."
- If the Supreme Court leans towards the anti-abortion movement's embrace of the Comstock Act, "it's going to nationalize the abortion issue in politics in a way we really haven't seen post-Dobbs," Ziegler said.
What is the Comstock Act?
The 1873 law made it illegal to mail what at the time was deemed "obscene, lewd, lascivious," such as pornographic publications. It cited"every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use."
- Congress has amended the law since its inception, including in 1971 when lawmakers removed language referring to contraception.
- The law had effectively been dormant after the Supreme Court's landmark 1973 Roe v. Wade ruling, which established a federal right to abortion.
- Anthony Comstock, the act's namesake, was the secretary for the New York Society for the Suppression of Vice and received a commission as a special agent of the U.S. Post Office, which gave him the power to enforce the law.
What does the act have to do with the abortion pill?
The Comstock Act is at the center of the recent ruling issued by U.S. District Judge Matthew Kacsmaryk, a Trump appointee in Texas, which laid down a precedent for using the Comstock Act to cut off shipments of abortion drugs nationwide.
- Kacsmaryk sided with conservatives saying that the act prohibits the mailing of mifepristone, one of the two drugs commonly used in medication-induced abortions.
- He said the FDA, in approving mifepristone in 2000, "acquiesced on its legitimate safety concerns … based on plainly unsound reasoning and studies that did not support its conclusions."
- The conservative Alliance Defending Freedom is representing the anti-abortion groups in the lawsuit.
The group cited the Comstock Act in its brief, writing that the FDA's approval violates "federal laws that expressly prohibit the mailing or delivery by any letter carrier, express company, or other common carrier of any substance or drug intended for producing abortion."
- Kacsmaryk's ruling came almost simultaneously with another federal judges's ruling in Washington that mifepristone authorization cannot be taken away because it would alter the "status quo."
- The Washington judge sided with a group of Democratic state attorneys general who challenged dispensing restrictions
Earlier this year, attorneys general in 20 conservative-led states warned CVS and Walgreens that they could face legal consequences if they begin mailing and distributing abortion pills. The letters sent to Walgreens to CVS cited the Comstock Act.
Where it goes from here
The Supreme Court, which currently has a 6-3 conservative makeup, has not touched "most of the key questions about the meaning" of the Comstock Act, Ziegler said.
- Ziegler predicted that if the Supreme Court weighs in on the legal merits of the act and appears to side with the conservative groups, Democrats could push to repeal the act.
- A Supreme Court ruling on the case could have far-reaching impacts nationwide if it sides with the anti-abortion groups' arguments on the law, potentially making it illegal to mail any abortion drug even in states where abortion access is protected.
What to watch: If the high court does not weigh in on the Comstock Act with the current court challenge, a ruling may still come down the line, Ziegler said.
- "I think sooner or later we're going to see something from the Supreme Court on Comstock, but it's too early to say if it's going to be in this case."
Go deeper… FDA's power tested by dueling abortion pill rulings
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