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This week, during Supreme Court arguments in a major abortion pill case, a conservative justice referred to long-dormant chastity laws, making it clear that drugs used in abortions, such as “obscene, obscene, obscene drugs,” A 19th-century statute prohibiting mail delivery is receiving new attention. “obscene” or “obscene” material;
The Comstock Act, as the law is known, is not at the center of the current Supreme Court case. But comments by Justices Clarence Thomas and Samuel Alito indicate that the law is becoming both a flashpoint in legal battles over abortion and a potential election-year issue for voters.
There are currently calls from within the anti-abortion movement for the incoming Republican administration to implement the Comstock Act, which would ban the mailing of abortion pills, but any action by Congress would still require Supreme Court approval. do not have.
But there is uncertainty and disagreement among abortion opponents about what that means. Some prominent figures in the anti-abortion movement say the law is being used to effectively ban medication abortions, even though other abortion opponents say the law is being interpreted to its fullest extent. However, it relies on shipments of abortion pills to providers. It has the potential to eliminate not just medical abortions, but abortion itself.
Abortion rights supporters say opponents are reading too much into the law, raising alarms as at least some justices on the Supreme Court appear to entertain a maximalist interpretation of the law's scope. It claims to be ringing.
Although Alito wrote the court's opinion overturning Roe v. Wade, Thomas is considered a judicial pioneer who succeeded in bringing mainstream views of the law that had previously been considered fringe. Their interest in the law's connection to Tuesday's incident illustrates how important the Comstock Act has been in efforts to further restrict abortion.
“Overturning constitutional privacy rights that extend to abortion, as reflected in Roe v. Wade, is not their endgame…even if it is a 19th-century law enacted before women had the right. They'll do anything, even if it's to bring back the “vote,'' said Skye Perryman, president and CEO of the Democracy Forward Foundation.
Current lawsuits against Comstock and the FDA
The Comstock Act was first enacted by Congress in 1873 and prohibited the use of the mail to transport a wide range of “obscene” items, including pornography, contraception, and drugs and other paraphernalia used in abortion. Although there were some prosecutions based on the law in the first decades after it was passed, courts in the early 19th century narrowed its scope, and the 1973 Abortion Rights Act overturned by the Supreme Court. During the precedent-setting Roe v. Wade case, enforcement of this law was completely suspended. In 2022 – was planned.
The Comstock Act has so far made only a cameo appearance in a case heard by the Supreme Court on Tuesday over the federal government's regulatory approach to mifepristone, one of two drugs used in medication abortions. is fulfilled. The justices ruled that changes the U.S. Food and Drug Administration has made to rules making mifepristone easier to obtain, including the FDA's 2021 action to allow the drug to be mailed to patients without an in-person doctor's visit. We are considering filing an objection. .
(The challengers also argued that mifepristone should be removed from the market completely. The trial judge agreed with them, but the appellate court reversed that aspect of the judge's ruling.)
Anti-abortion doctors and medical associations, the plaintiffs in the lawsuit, cited the Comstock Act in various arguments, arguing that the FDA acted illegally by failing to consider a 19th-century criminal prohibition against mailing abortion pills. It is claimed that
Mr. Alito on Tuesday pressed U.S. Attorney General Elizabeth Preloger, who was defending the FDA, about these claims. Alito referred to the law by its U.S. code number (18 USC 1461) rather than its colloquial name, and said Comstock was a “salient provision” and not “an obscure part of a complex and ambiguous law.” .
The Biden administration has argued that the Comstock Act is not relevant to the current debate over medical regulation of the drug because it is not the FDA's job to interpret and enforce criminal law.
Preloger said Tuesday, referring to the types of restrictions currently placed on the use of mifepristone, saying, “What the FDA could consider with respect to restrictions is safety and efficacy when deciding whether to maintain the REMS program.” “It's clear that there are only concerns.”
Thomas also invoked the law and asked the mifepristone manufacturer's attorney how to respond to claims that “mailing or advertising the product violates the Comstock Act.” .
The other justices on the court were not interested in delving into the importance of the Comstock Act or many of the other legal issues the case raises. Rather, the majority appeared prepared to abandon the case because the challengers had failed to take a stand, i.e., because of the type of harm that required judicial action.
But when the Supreme Court rules on this case in the coming months, any commentary on the law, even dissenting opinions, will likely receive a lot of attention.
“With regard to the outcome of this case, or as a broader indication that some justices believe that this Comstock Act could be used to completely take away the right to abortion nationwide, There is a good chance Comstock will be mentioned in the final ruling,” Julia Kaye, senior staff attorney with the ACLU’s Reproductive Freedom Project, said at a press conference after the arguments.
The case heard by the Supreme Court on Tuesday is unlikely to rule on the law's scope, so the candidate who wins the 2024 presidential election could decide whether the Comstock Act gets a new lease of life. There is sex.
President Joe Biden's Justice Department released internal legal guidance arguing that the Comstock Act's prohibitions do not apply to drugs used in legal abortions. The Justice Department's Office of General Counsel's opinion, which binds the entire federal government but has no control over the courts, points to early 20th century court rulings.
But some legal experts believe that if the Justice Department reversed its position under a Republican administration and the law was interpreted to apply to drugs used in both legal and illegal abortions, the law believes that it could be implemented in a way that impedes or even abolishes abortion provisions. Medication abortions would be banned nationwide, as pharmaceutical companies and distributors would not be allowed to ship abortion pills through their supply chains.
Under an extreme interpretation of the law, access to clinical abortions could also be effectively eliminated by using the Comstock Act to prohibit the shipment of tools and equipment used in abortions to abortion providers. Some people think that there is.
A policy agenda compiled by the Heritage Foundation, an influential conservative think tank, calls for the law to be implemented, but provides few details about what it aims to do.
Roger Severino, vice president of domestic policy at the Heritage Foundation, said future administrations will use the law to make abortions, or even medication abortions, impossible in states where abortion is legal. I denied the idea.
“The impact of the Comstock Act has been exaggerated by pro-abortion advocates,” said Severino, who previously served as a senior official at the Department of Health and Human Services in the Trump administration.
Severino told CNN that misoprostol, another drug used in medical abortions, has uses other than abortion, so misoprostol can be used even in states where abortion is legal. I explained the scenario where women can take advantage of it.
Some in the anti-abortion movement, including advocates who requested anonymity to speak candidly with CNN, feared a political backlash if the Comstock Act was enforced too aggressively, meaning Congress would not be able to force the law completely. They are wary of a backlash that could put pressure on them to abolish it. If former President Donald Trump is re-elected, he says his administration should consider political risks when deciding how to enforce the law.
Trump's campaign has also avoided publicly discussing the Comstock Act and related issues like how abortion drugs would be regulated if he returns to the White House.
Officials close to President Trump acknowledged the complexity of the issue and told CNN that many prominent anti-abortion groups have differing views on how to approach the legal battle.
The political implications of the Supreme Court's final decision in the current FDA case are also at the forefront of how this issue is approached. For now, Trump is in “listening mode,” one of the people said, taking advice from several prominent anti-abortion allies on various aspects of the case.
CNN's Michelle Shen and Alayna Treene contributed to this report.
