Anti-abortion groups are looking for new ways to fight against abortion rights, given the potential implications of a 150-year-old law, the Comstock Act, that could effectively lead to a nationwide ban on abortion.
Congress passed the Comstock Act in 1873, making it a crime mail or ship any “lewd, lascivious, indecent, sordid or contemptible article” and anything that “is advertised or described in a manner … to produce abortion.”
There are now lawsuits challenging the Food and Drug Administration regulation of mifepristone, one of two drugs used in the standard medication abortion regimen. If courts find that the FDA has the authority to approve mifepristone for abortion, the Comstock Act could still prevent distribution of the pill.
As scholars of the law and reproductive justicewe analyzed potential strategies for using this Victorian-era law to limit the ability to have an abortion in the US
Somehow, the Comstock Act could prevent mifepristone from being sent to someone’s home, whether or not that person lives in a state where abortion is legal.
A broader interpretation, put forward by anti-abortion groups in recent months, would mean the Comstock Act applies to everyone’s distribution medicines and medical devices used for abortions, not just mifepristone.
The Supreme Court has issue of abortion rights to states in June 2022. But it’s important to understand that the Comstock Act is a federal law that applies to states regardless of their approach to abortion.
So during abortion remains legal in certain statesdo we think it is possible for a court to interpret the Comstock Act to prevent the distribution of any device used for an abortion anywhere in the US
The History of the Comstock Act
Devout Christian and self-described “moral evangelist” Anthony Comstock came up with the idea of what would become the Comstock Act after being troubled by the large amount of pornography and alcohol consumed by his fellow Union soldiers.
He lobbied Congress to pass a law restricting what he considered lewd behavior through “his impressive collection of pornographic photographs, sex toys and contraceptivesin the Capitol “to get Congress to pass anti-obscenity legislation.”
Congress then passed the Comstock Act in 1873.
Although prosecutions under the Comstock Act were initiated in the early 20th century, enforcement began to decline by the 1930s.
Even the Supreme Court has heard occasionally matter related to the law in the past 100 years. For example, in 1983 the Supreme Court ruled that application of the Comstock Act was prohibited mailed advertisements about contraceptives violated the First Amendment.
Since then, no court has made a decisive ruling to actually enforce the Comstock Act.
Indeed, important court decisions have limited the applicability of the law.
And in 2022, the Justice Department issued an advisory that concluded that the Comstock Act does not prohibit sending mifepristone if the sender is unaware that the recipient intends to use those pills “illegally” for abortions – the recipient may use them to treat a miscarriage, for example.
Apply the Comstock Act today
As anti-abortion rights groups breathe new life into the Comstock Act, the question is what exactly the law covers. Different court cases address this point in different contexts.
Judge Matthew Kacsmaryk of the Texas Federal Court – who issued a preliminary ruling on April 7, 2023, effectively withdrawing the FDA’s approval of mifepristone – said the Comstock Act prevented the shipment of abortion pills.
When that decision was appealed, the appeals court appeared to agree with Kacsmaryk. It noted that the law does not necessarily require users “of the postal service or interstate interstate transportation with the intent that an abortion actually take place,” contrary to the Justice Department’s 2022 opinion. However, it stressed that it was “not required to make the Comstock Act final.” interpret it”, because it did not make a final statement.
That decision was subsequently appealed to the Supreme Court, which temporarily upheld the availability of mifepristone and returned the case to the 5th Circuit Court of Appeals for full review on April 21.
The appeals court will hear oral argument on May 17 and must provide a more definitive interpretation.
Expansion to other court cases
The Comstock Act is also at the center of other types of lawsuits and legal campaigns focused on whether people can get abortions.
Jonathan Mitchell, a conservative lawyer And former Texas attorney general, is trying to use the Comstock Act to ban abortion altogether. Especially him too invented the Texas “bounty hunter” abortion law in 2021 that will ban most abortions and “deputies citizens sue people involved in the process.”
As of 2019, there are two counties and more than 60 cities in Texas, Nebraska, Iowa, Ohio, New Mexico, Louisiana, and Illinois adopted regulations that prohibit abortion. This is part of a political campaign called Sanctuary Cities for the Unborn – orchestrated by Mitchell and conservative pastor Mark Lee Dickson.
Some of these places ban now the shipment and receipt of abortion drugs or medical supplies used for abortions.
These regulations have led to two lawsuits calling into question their legal status.
New Mexico Attorney General Raúl Torrez sued several Sanctuary City cities in January 2023, claiming that the ordinances against state law that says people have the right to access health care and that the care of patients by doctors is a private matter.
But then the New Mexico city of Eunice, another Sanctuary City, also filed trial in April 2022asking a state court to rule that the Comstock Act is enforceable.
Finally, the Comstock Act is also applied after an abortion has taken place.
In a lawsuit filed in Texas in March 2023, Marcus Silva, a Texas resident, indicted three women for wrongful death, saying they assisted in “the murder of Ms. Silva’s unborn child with illegally obtained abortion pills.” The complaint notes that Silva will also sue the manufacturer of the pills for wrongful death under the Comstock Act.
Email, distribute or ban?
It seems likely that the high-profile federal FDA mifepristone case in Texas could be head back to the Supreme Court after the 5th Circuit renders its ruling. If so, the Supreme Court could rule that the Comstock Act only applies to mailing items if the sender knows the items are intended to be “illegally” used for abortions. In that case, little or nothing will change in states where abortion is legal.
Or the court could rule that the Comstock Act prohibits the shipping of mifepristone regardless of the user’s intent, making access to medication abortion more difficult. The court could also cast a wider net by banning the shipment of abortion medication altogether in the US
And if the Comstock law applies to mifepristone, it can also apply to any other item or device used to terminate a pregnancy. Such a ruling would effectively impose a nationwide ban on abortion, even in states that allow abortion. Achieving this result based on an 1873 Victorian statute would be in full compliance with Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade based on the state of the law in 1868.