What does the 1870s Comstock Act have to do with abortion pills?

Washington: A 19th century “anti-vice” law is at the center of a new court ruling that threatens access to the leading abortion drug in the U.S.

Dormant for a half-century, the Comstock Act has been revived by anti-abortion groups and conservative states seeking to block the mailing of mifepristone, the pill used in more than half of U.S. abortions.

Last week, a federal judge in Texas sided with Christian conservatives in ruling that the Comstock Act prohibits sending the long-used drug through the mail.

Here’s a look at the case and the law:

What happened? 

In a sweeping ruling, U.S. District Judge Matthew J. Kacsmaryk said that the Food and Drug Administration’s approval of mifepristone more than two decades ago violated federal rules. The Biden administration and mifepristone’s main drug maker filed appeals notices within hours of the decision.

The Texas ruling came almost simultaneously with an order from a judge in Washington state, who said the FDA must maintain access to the drug in Democratic-led states that filed their own lawsuit. The dueling opinions are expected to send the matter quickly to the Supreme Court.

If upheld, Kacsmaryk’s 67-page decision would also dismantle recent FDA changes designed to ease access to mifepristone, particularly a 2021 switch that allowed the drug to be sent through the mail.

What is the Comstock Act? 

Originally passed in 1873 and named for an anti-vice crusader, the Comstock Act was intended to prohibit the mailing of contraceptives, “lewd” writings and any “instrument, substance, drug, medicine, or thing” that could be used in an abortion.

Kacsmaryk, though, agreed with plaintiffs that the law — as literally interpreted — prohibits mailing mifepristone.

The FDA’s decision allowing the “dispensing of chemical abortion drugs through mail violates

unambiguous federal criminal law,” he concluded.

What is the Comstock act in play now? 

 

The law was essentially dormant in the 50 years after Roe v. Wade established a federal right to abortion. And until the FDA loosened its requirements on mifepristone in 2021, there was no real way to enable abortion through the mail.

But Rachel Rebouché of Temple University’s law school says anti-abortion groups — emboldened by the Supreme Court decision overturning Roe — have seized on Comstock to try and shut off the flow of abortion drugs.

How have courts treated the Comstock Act in the past? 

Beginning in the 1930s, federal courts issued rulings drastically narrowing how the law could be applied. Read literally, the law could be interpreted to outlaw almost any medical item that could be used in an abortion.

“The interpretation being advanced would apply to all kinds of articles – like surgical gloves — that are just basic equipment for health care,” Rebouché said.

A key 1936 ruling concluded that the law could only apply when the person mailing an item or drug specifically intended it to be used illegally for abortion.

In December, the Biden administration’s Justice Department attempted to bolster that interpretation, issuing an opinion that Comstock could not be used to outlaw the mailing of abortion pills because of their many legal uses, including during miscarriages and under abortion-ban exceptions.

What happens next? 

The Supreme Court has never weighed in on Comstock and — assuming the justices take up the case— the ruling could have far-reaching consequences for American women, abortion providers and their opponents.

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