An 1873 Law May Be New Front in Abortion Fight

Comstock Act, banning the mailing of 'obscene' materials, hasn't been applied in nearly a century
By Arden Dier,  Newser Staff
Posted Mar 29, 2024 9:24 AM CDT
An 1873 Law May Be New Front in Abortion Fight
Mira Michels of Aid Access, prepares to take the mifepristone pill in protest as demonstrators from both anti-abortion and abortion rights groups rally outside the Supreme Court in Washington, Tuesday, March 26, 2024.   (AP Photo/Amanda Andrade-Rhoades)

A century and a half ago, before women had the right to vote, a federal law was enacted banning the mailing of "obscene, lewd, [or] lascivious" materials, including abortion drugs. Though never fully repealed, the 1873 Comstock Act hasn't been applied in nearly a century and some experts say it's largely obsolete. Yet conservative Supreme Court Justices Clarence Thomas and Samuel Alito see the law as very much relevant in determining whether to curb access to the abortion pill mifepristone. Indeed, in arguing the law is viable, the justices could set the stage for a future anti-abortion administration to effectively ban abortions "without needing Congress to act," per the Hill. More:

  • Precedent: Lower courts have determined the law only prohibits the distribution of drugs intended to be used in unlawful abortions, as the Justice Department echoed in 2022. But anti-abortion groups believe they can change that view and "potentially end not only medication abortion, but abortion altogether," per CNN.
  • The argument: "We don't think that there's any case of this court that empowers FDA to ignore other federal law," attorney Erin Hawley, who represents the group challenging the FDA's decision to allow patients to receive mifepristone by mail, said Tuesday, per ABC News. "The Comstock Act says that drugs should not be mailed either through the mail or through common carriers."
  • Opposing view: Questioned by Alito, Solicitor General Elizabeth Prelogar said the FDA "was not affirmatively approving mailing in violation of Comstock, even if you interpreted it that way. And we don't think it means what respondents suggest it means," per ABC.

  • What could happen: SCOTUS likely looks to back the FDA. But even so, a Republican administration could interpret the law as applying to drugs used in lawful and unlawful abortions and "potentially end the provision of medication abortion nationwide," per CNN. And "under an extreme reading of the law," the shipping of instruments used in clinical abortion might also be prohibited.
  • Expert opinion: University of Pittsburgh law professor Greer Donley predicts SCOTUS will approve the FDA's expansion of mifepristone access but Thomas and/or Alito will write a dissenting opinion "to kind of bring Comstock along into the national consciousness and to basically … normalize it in every way possible," he tells the Hill.
  • Democrats sound alarm: After the justices raised the Comstock Act on Tuesday, Democratic Rep. Cori Bush called for Congress to repeal the law viewed by the pro-life movement "as a quick route to a nationwide medication abortion ban," per the Washington Post. Other Democrats "have reportedly started to strategize how to weaken the Comstock Act," per the Hill.
(More abortion stories.)

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