Tucked into a Texas judge’s decision to revoke the federal approval of the medical abortion drug mifepristone is a broader goal: the implementation of a national ban on all abortions.
The decision by US District Judge Matthew Kacsmaryk in Texas contains two arguments that could lead to a national abortion ban. First, Kacsmaryk opens up the possibility of providing all stages of prenatal development with personal rights by insisting on defining the zygote and fetus as “unborn human beings” or “unborn children.” Second, and less directly, the judge invoked the Comstock Act of 1873 to support banning the distribution of materials or products to promote abortion.
Despite the US Supreme Court’s assertion that it returned the issue of abortion to the states in its 2022 decision in Dobbs v. Jackson’s Women’s Health Organization, an anti-abortion movement has always called for a national ban on abortion. The anti-abortion movement was founded in the 1960s with the goal of banning abortion throughout the country. That began with a push for a constitutional amendment, but as it foundered, the movement shifted to judicial remedies, including overturning Roe v. Wade, the 1973 decision that legalized abortion, and found “prenatal privacy” rights through the 14th Amendment.
Judges who want to push the law in a certain direction often introduce new arguments about decisions that others may make in the future. Kacsmaryk did exactly that in his decision in the mifepristone case. Kacsmaryk pursues prenatal personhood with his unusual definition of all entities in the prenatal stage of development as “unborn human beings.” This should come as no surprise, as Kacsmaryk was an anti-abortion activist before President Donald Trump nominated her for the federal court in 2017. Her decision was littered with anti-abortion rhetoric, calling doctors “abortionists,” and relying on anonymous submissions. on the anti-abortion movement’s website to frame abortion as a dangerous practice for women.
There is likely little appetite in the Supreme Court to establish prenatal personal rights, because this would be more than the court in Dobbs when it nullified Roe. This makes another attempt by Kacsmaryk to introduce new arguments to ban abortion nationwide even more important.
Kacsmaryk’s decision overturned the Food and Drug Administration’s approval of mifepristone and the government’s authority over mail-order distribution based on the 150-year-old antitrust law known as the Comstock Act. The Act was passed during the Victorian era after a campaign by Postal Service inspector and anti-representative crusader Anthony Comstock sought to ban the distribution of obscene material offensive to public morals. The material includes everything from pornography and erotica to advertising, promotion and educational material on abortion and contraception.
States followed suit by enacting their own Comstock laws. This state law is routinely used to silence reproductive rights advocates, including Planned Parenthood founder Margaret Sanger. In protest of being silenced, Sanger appeared in public with her mouth covered while historian Arthur Schlesinger Sr. read aloud the speech she was forbidden to give.
Enforcement of the Comstock Act fell out of favor as public attitudes changed and courts removed certain material from the area. In 1960, a court decision ended the Comstock Act’s ban on the distribution of obscene material when it allowed Grove Press to distribute DH Lawrence’s novel “Lady Chatterley’s Lover” over longstanding objections from the US Postal Service. After the Supreme Court’s 1965 decision in Griswold v. Connecticut legalized contraception, Congress repealed the corresponding provisions of the Comstock Act in 1971.
The provisions of the Comstock Act covering abortion remain in place, but the federal government has interpreted that provision to allow the delivery of abortion drugs as long as they are not used “unlawfully.” Kacsmaryk’s decision aims to eliminate these protections.
David Erickson via the Associated Press
“The statute clearly does not require intent on the part of the seller to use the drug unlawfully,” Kacsmaryk wrote. “Certainly, the statute contains a comprehensive provision that prohibits the sending of such letters ‘to produce an abortion, or for any obscene or indecent purpose.'”
Kacsmaryk’s application of the Comstock Act here applies to any item purchased through the mail or other transportation for the purpose of an abortion.
“There is no method of abortion in the United States that does not use ‘designed, adapted, or intended for abortion’ and sent by mail or through another carrier,” Mary Ziegler, professor of law at the University of California, Davis, writes in the Atlantic. “Abortion clinics do not make their own drugs or equipment; they order these items from pharmaceutical distribution companies and suppliers of medical equipment. Taken as a logical conclusion, Kacsmaryk’s decision means that all abortions have violated the criminal law.
The Biden administration has filed an appeal of Kacsmaryk’s opinion to the U.S. Court of Appeals for the 5th Circuit, which is stacked with right-wing Trump appointees. This case will end up in the Supreme Court sooner rather than later, and some conservatives, who have promised to leave this issue to the states, may be too extreme to approve.
However, Kacsmaryk’s revival of the Comstock Act shows that overturning Roe is not the ultimate goal of the anti-abortion movement. They will not accept anything less than a complete national ban, no matter how much they may upset Republicans squirming about the difficult political position that puts them in when the majority of Americans support abortion rights.