A 150-Year-Old Law Could Help Determine the Fate of U.S. Abortion Access

The Washington Post

17:31 JST, May 18, 2023

The future of abortion access in the United States may soon depend on how courts interpret a 150-year-old law that hadn’t been applied for nearly a century – and whose author originally intended for some abortions to remain legal.

The 1873 Comstock Act, the signature work of an anti-vice crusader who sought to impose his moral and legal rubric on the nation, banned the mailing of “indecent” materials such as pornography and sex toys but also included provisions limiting access to abortion and contraception drugs sent by mail.

The law and similar efforts helped reshape American society before being steadily whittled down by Congress and the courts, particularly after Roe v. Wade instituted a national right to abortion in 1973. The law’s namesake, Anthony Comstock, also expressly supported doctors performing some abortions, according to an interview he gave before his death that was reviewed by The Washington Post.

Now, the Comstock Act, which most experts say was rendered obsolete decades ago, is being used – some say inaccurately – to place further restrictions on abortion drugs after the Supreme Court overturned Roe last year. The fight this week moved back to the U.S. Court of Appeals for the 5th Circuit, which is reviewing a ruling from a federal judge in Texas that would suspend access to the abortion pill mifepristone. It’s also part of a mounting legal effort by activists and some Republican officials to invoke the long-forgotten law to potentially ban all abortions nationwide.

“If a future president were to enforce these federal statutes, then they could shut down every abortion facility in America,” said Mark Lee Dickson, an antiabortion activist who along with former Texas solicitor general Jonathan Mitchell revived efforts to apply the Comstock Act. “People are asking Donald Trump and [Florida Gov. Ron] DeSantis if they’re going to support a federal ban on abortion. . . . The way I see it, we already have a de facto federal ban on abortion. We’ve just got to enforce it.”

That thinking is echoing in courtrooms. In his April ruling to suspend the Food and Drug Administration’s approval of mifepristone, U.S. District Judge Matthew Kacsmaryk relied in part on the Comstock Act, saying the meaning of the law is clear from the text – an argument that could be appealing to other conservative judges who consider themselves “textualists” and say they focus on the original wording of a statute.

Mifepristone, which was first approved in 2000, is used as part of a two-drug regimen in more than half the nation’s abortion procedures. The Supreme Court in April put Kacsmaryk’s ruling on hold, preserving full access to the medication while the litigation continues.

Dickson and Mitchell, who paved the way two years ago for a near-total abortion ban in Texas, say they are looking for opportunities to pass local ordinances to enforce the Comstock Act – particularly in conservative cities and towns within liberal-leaning states – by making the case that federal law supersedes state regulation. Dickson spoke to The Post on Friday from Grayson County, Va., where he is working with officials to enact one of those ordinances. Four cities, two counties and one town have adopted similar ordinances after working with Dickson’s campaign, known as Sanctuary Cities for the Unborn.

Comstock could also be used, Mitchell said, to challenge laws that compel state universities, for instance, to stock abortion pills at campus health centers.

Conservative activists and legal scholars predict that the Supreme Court will eventually need to step in to address the issue, given that the Biden administration has taken a dim view of the Comstock Act and its applicability to the current fight over access to abortion drugs. The Justice Department issued a legal memo in December asserting that the Comstock Act does not prevent the mailing of abortion medication when the sender believes the drug will be used lawfully in states where abortion is permitted.

Three judges – two nominated by President Donald Trump and one picked by President George W. Bush – heard the mifepristone case on Wednesday at the 5th Circuit, where a brief exchange signaled that the panel may be open to conservatives’ arguments about the Comstock Act.

Judge Jennifer Walker Elrod, the Bush nominee, asked about the law’s past applications and noted that there was “some disagreement” over the Biden administration’s conclusion that the Comstock Act doesn’t prohibit the mailing of abortion drugs.

“Our main argument on Comstock is that Congress did not charge FDA with doing a survey of all civil and criminal laws when making decisions about whether drugs are safe and effective,” Justice Department attorney Sarah Harrington responded. “FDA is full of scientists, not prosecutors.”

In advance of Wednesday’s oral arguments, officials from nearly two dozen states led by Democrats warned the court that Kacsmaryk’s interpretation of the Comstock Act would have “potentially boundless effects on medical care delivery” by preventing the distribution of devices, surgical instruments and equipment used in obstetrics and gynecology, in addition to drugs routinely used in other medical treatments.

Separately, a group of nearly 60 former Justice Department officials who served in Democratic and Republican administrations said Kacsmaryk had “gravely misinterpreted” the Comstock law.

“Make no mistake: the court’s interpretation is gravely incorrect; Congress intended the Comstock laws to prohibit only distribution intended to produce unlawful abortions,” they wrote in a brief filed with the 5th Circuit.

Federal courts, they added, have consistently ruled across three decades that Congress “intended the Comstock laws to reach the distribution of abortion-producing items only if intended to produce unlawful abortions.”

Abortion rights groups have also slammed the effort to revive the Comstock Act, with several warning of a “Pandora’s box” for public health and patients.

Invoking the Comstock Act to ban abortion drugs is a “fantastical legal theory that should be not even worthy of a first-year law student’s late-night dreamings,” said Andrea Miller, president of the National Institute for Reproductive Health, an abortion rights advocacy group, warning of further consequences. “If it were to apply to medication abortion pills, then it’s hard to see how it wouldn’t also apply to other drugs and devices that are essential to gynecologic care, to managing miscarriages, to treating pregnancy complications, because these things are all interconnected.”

Women’s March, a coalition of dozens of reproductive health and abortion rights groups, called on Democrats last week to “act ASAP to repeal the Comstock Act.”

Congress is unlikely to reach bipartisan agreement on what to do next. But the pro-Comstock argument has gained traction in some federal courts, including among judges nominated by Republican presidents who consider themselves “textualists” like Kacsmaryk.

In a preliminary review of Kacsmaryk’s ruling last month, a divided three-judge panel of the 5th Circuit cast doubt on the Biden administration’s interpretation of the Comstock Act and the administration’s suggestion, the 5th Circuit wrote, that the law “does not mean what it says it means.”

According to the judges, the existence of the Comstock Act raises further questions about the distribution of mifepristone and favors the antiabortion groups challenging the medication. The judges added that a literal reading of the law suggests the drug manufacturer, Danco, is violating the law “every time it ships mifepristone” – an assertion the company rejects.

Republican attorneys general and senators have warned pharmacies that a future administration could punish them for distributing mifepristone under the Comstock Act.

The Biden administration’s legal memo “does not protect CVS or any other individual or entity from being prosecuted within the five-year statute of limitations for the illegal mailing or interstate shipment of abortion drugs by a future Presidential administration that respects the rule of law and the sanctity of life, even for conduct that occurs today,” Sen. Cindy Hyde-Smith (R-Miss.) and eight other GOP senators warned CVS this month, in one of a series of letters that the senators sent to pharmacies.

Legal experts had regarded the law as essentially defunct after Congress repeatedly revised it and after Roe rendered it moot.

“No one really thought about what Comstock meant until recently because no one thought that Comstock would ever be enforced,” said Mary Ziegler, a law professor at the University of California at Davis. She noted that a strict reading of the law could allow for far-reaching consequences, such as the potential prosecution of women who receive abortion drugs.

“If your entire movement is structured around the idea of a national [abortion] ban, then this is maybe the only route to get to one,” Ziegler said.

While Comstock is often portrayed as an arch-critic of abortion, his views on the procedure appear to be nuanced and not fully known. His knowledge of conception and pregnancy – shaped in part by witnessing his mother die from childbirth – was limited, biographer Amy Sohn writes in her book, “The Man Who Hated Women.”

“The man who did more to curtail women’s rights than anyone else in American history had nearly no understanding of reproduction; he believed a fetus could form seconds after unprotected sex,” Sohn writes.

But Comstock – originally a shopkeeper who won favor with powerful organizations and lawmakers and was later empowered as a postal inspector – appeared to draw a line between licensed physicians privately recommending abortions and the prominent abortionists whom he viewed as “quacks” and who were targeted in his raids, according to several historians and comments attributed to Comstock. A draft of his namesake bill contained an exception for licensed physicians, before it was amended in a hasty debate on the Senate floor.

According to an interview published in the May 22, 1915, issue of Harper’s Weekly, Comstock expressed dismay that his act was being used to interfere with physicians’ private practices. Instead, he said the law should target “only in-famous doctors who advertise or send their foul matter by mail. A reputable doctor may tell his patient, in his office what is necessary, and a druggist may sell on a doctor’s written prescription drugs which he would not be allowed to sell otherwise.”

Comstock added that some abortions were permissible. “A doctor is allowed to bring abortion in cases where a woman is in danger,” he is quoted as saying.

Comstock’s comments about deferring to licensed physicians “says it all,” according to Anna Louise Bates, author of “Weeder in the Garden of the Lord,” a 1995 biography of Comstock. “I think he would have thought that [abortion] was a matter for the family, the woman and the doctor to decide privately.”

“It tracks with the other pieces of information I know,” said Lauren MacIvor Thompson, an assistant professor of history at Kennesaw State University who is working on a book about the early birth control movement. His frustrations were not focused on “physicians making legitimate medical decisions . . . [but] illegitimate, back-alley abortionists – men who made a lot of money off of women’s desperation.”