As legislation allowing the distribution of the abortion drug mifepristone moved swiftly to the Supreme Court, the anti-abortion movement overturned Victorian anti-representation laws designed to control public morality through mail policing.
In their ruling limiting the distribution of mifepristone, District Court Judge Matthew Kacsmaryk, a Donald Trump appointee, and two other Trump-appointed judges on the Fifth Circuit Court of Appeals adopted an interpretation of the Comstock Act of 1873 that could lead to a total nationwide ban. abortion.
Enacted during the Victorian era, the federal Comstock Act and its state-level counterparts authorized the Postal Service to search any mail that might offend public morals. Prohibited material includes pornographic pictures and images, literature considered obscene, informational documents explaining sex, sexuality, contraception and abortion, advertisements for contraception and abortion and anything that can be used for contraception or abortion.
This law was used to prosecute thousands of people and seize hundreds of thousands of papers, pictures and objects sent, including more than 8,000 boxes of drugs used for abortions from 1873 to 1907. The crackdown led by law, postal inspectors and morals. Anthony Comstock’s crusade, faced strong opposition from a new wave of progressive and libertarian-minded feminists and activists. As public sentiment has changed over the years, the law has fallen into disrepair, and proponents have been ridiculed for practicing “Comstockery.”
These restrictions fell one by one in the middle of the 20th century after several court decisions that supported free speech and the legalization of contraception, in Griswold v. Connecticut, and then abortion, in Roe v. Wade, leaving practical applications outside. the spread of child pornography.
But five conservatives on the Supreme Court overturned the abortion rights granted in Roe in the 2022 case Dobbs v. Jackson Women’s Health Organization. While Congress has repealed sections of the Comstock Act that restricted the distribution of contraceptive-related materials after Griswold, it has never removed restrictions on abortion. Suddenly, the Comstock Act was back.
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Decisions in the district court and the court of appeals in the Fifth District show that conservative judges are ready to interpret the abortion ban in the Comstock Act in a way that makes it impossible not only to deliver abortion drugs, but also for any abortion clinic. anywhere in the country.
“This is probably the most promising path to a national abortion ban,” said Mary Ziegler, a law professor at the University of California-Davis and a historian of the anti-abortion movement.
The law is now a direct issue in the courts and must soon be in the 2024 presidential election. Because the law is already on the books, an anti-abortion presidential administration can order the law to be implemented without waiting for the courts to do anything. This could effectively make it illegal to operate as an abortion provider anywhere in the country.
The revival of the Comstock Act as an anti-abortion weapon began in Eastern New Mexico, where Pastor Mark Lee Dickson of Right to Life East Texas led a campaign to ask cities and counties to enact laws using the language of the Comstock Act to effectively ban abortion. the limit.
Dickson and former Texas Attorney General Jonathan Mitchell have broken new ground on anti-abortion law in Texas as the architects of the state’s anti-abortion law became SB 8 in 2021. Passed before the Supreme Court overturned Roe, SB 8 found its way. on Roe’s abortion protections by authorizing private citizens to file civil suits against anyone who provides or assists a person in having an abortion.
Mitchell and Dickson first laid the legal framework for SB 8 in Waskom, Texas, on the Louisiana border. It is rumored that an abortion provider from Louisiana may move their practice across state lines to Waskom. Dickson helped the City Council establish an ordinance that used the language that would eventually become SB 8. Success led them around the country to implement other local ordinances until the legislature finally passed a statewide law.
After the Supreme Court’s decision in Dobbs, abortion became illegal in Texas. Some abortion providers appear to be moving to the New Mexico border with Texas in the town of Hobbs. Dickson worked to get the city to pass an ordinance that would effectively ban abortions there. But instead of using a civil suit to enforce it, Dickson turned to the language of the Comstock Act.
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Specifically, Dickson relied on Section 1641 and Section 1642 of the 150-year-old statute. Those sections of the law prohibit the shipment or transportation of “articles, instruments, substances, drugs, medicines, or things advertised or described in a manner calculated to be used or applied to effect an abortion,” and “any drug. , drugs, articles, or things designed, adapted or intended to cause abortion,” respectively.
A group of 20 Republican attorneys general cited this provision of the Comstock Act in a letter to Walgreens and CVS to force the two pharmacies to stop providing mifepristone to patients.
These two sections of the Comstock Act were also cited in two decisions on mifepristone by Kacsmaryk and a three-judge panel of the Fifth Circuit Court of Appeals. He said a reading of the text of the law shows that the delivery of abortion drugs for any reason is illegal.
This contradicts an opinion by the Biden administration’s Office of Legal Counsel that was released in December 2022 making a legal case for why the Comstock Act did not make shipping abortion drugs like mifepristone illegal. The opinion said that through a number of lower court decisions and legal guidance, the Comstock Act’s limitations apply only when the sender knowingly intends to use it “unlawfully”.
Calling the interpretation of the Comstock Act adopted in the mifepristone decision “absolutely stupid,” Jennifer Dalven, director of the Reproductive Freedom Project at the ACLU, said that if the court applied them “it would be a disaster.”
Dickson agreed that this interpretation of the Comstock Act would be a disaster for abortion providers, but with a big difference. He believes there is no need for judicial interpretation of the issue – although he hopes so. However, he said there is already a “de facto abortion ban” found in Comstock Act Sections 1461 and 1462.
“I don’t think we need a court opinion to say that this law is enforceable,” Dickson said.
The Biden administration may have chosen not to enforce the Comstock Act, he said, but that doesn’t mean a different presidential administration couldn’t interpret the law in a way that would allow them to prosecute abortion providers, abortion drug manufacturers and anyone else who violates it. .
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“The new Republican administration may decide to take action against the abortion industry for its violations [the Comstock Act’s] section 1461 [and] 1462,” said Dickson.
While the Supreme Court, which stayed the Fifth Circuit’s decision on Friday while considering the case, could simply dismiss the mifepristone case for lack of standing or rule without commenting on the Comstock Act, this issue will not go away.
Both Dickson and Ziegler believe that Supreme Court conservatives will adopt some interpretation of the Comstock Act used by Kacsmaryk and the Fifth Circuit appeals court judges at some point.
Even if not, an anti-choice Republican presidential election in 2024, as Dickson suggests, could effectively ban abortion nationwide by launching prosecutions of abortion providers under the Comstock Act.
“Democrats have two options, they can only hope that the Supreme Court does not interpret the Comstock Act the way the Fifth Circuit did and hope that this issue just disappears or they can actually get rid of the Comstock Act,” Ziegler said.
Unlike court rulings affirming the personal rights of fetuses to enforce a national abortion ban, the threat of an effective ban through the Comstock Act can be eliminated by simply repealing the law. And even though Republicans, who control the House, won’t participate, politics is on the Democratic side.
“For the Democrats, there is no loser in the repeal proposal because, even if the Republicans will not vote for this, it would be good to ask people on the record about whether it is good to have a law that says you cannot. send any medicine intended or adapted for abortion , including non-abortion drugs, from the moment of fertilization,” said Ziegler. “Because that’s 100% where the American people are on this.”
If not, Dickson promises that the Comstock Act will force the hand of abortion providers to close entirely.
“When I read this court opinion, I saw that what is happening is that the abortion industry will be Comstocked,” Dickson said. “The abortion industry cannot escape this federal law — this de facto federal abortion ban. Sooner or later, the Comstock Act will overtake the abortion industry.