The Supreme Court recently rejected the attempts of a group of anti-abortionists to severely limit access to mifepristone. However, fear of losing access to abortion pills and contraceptives persists due to the existence of an 1873 law that conservatives seek to abuse.
Although conservatives successfully overturned Roe v. Wade in 2022, leaving abortion rights in the hands of each individual state wasn’t enough for them. As a result, it wasn’t long before they began attacking abortion pills, with a coalition of anti-abortion groups and doctors filing a lawsuit seeking to overturn the FDA’s 24-year-old decision to approve mifepristone. After initially seeking to wholly overturn the drug’s approval, the group switched to attempting to severely restrict access to it, including by mail. The case was built on lies and misconceptions about mifepristone and came from a group of people who could not prove the FDA’s decision ever caused them legal injury.
Although the Supreme Court made the right decision in tossing out the senseless lawsuit, it is difficult to celebrate a decision in a case that never should’ve existed in the first place. If conservatives can succeed in getting the Supreme Court to hear lawsuits with no legal standing, it raises concern regarding how far their next outrageous plan to attack abortion will go, which involves grossly misapplying a centuries-old law.
What you need to know about the Comstock Act
The Comstock Act was the doing of a man from New York named Anthony Comstock. He was a devout Christian who despised birth control, believing it was designed to promote lust and promiscuity. As a result, he drafted a law to restrict access to contraception, which Congress opted to pass in 1873. The law became known as the Comstock Act and criminalized the mailing of any materials deemed “obscene, lewd, or lascivious.” The text is purposefully vague in what it defines as “obscene” and eerily parallels modern-day censorship attempts from conservatives who have successfully banned hundreds of books under the false claim that they’re “obscene.”
However, the law did explicitly criminalize the mailing of two specific types of materials: those pertaining to contraception and abortion. It renders illegal the mailing of “any article or thing designed or intended for the prevention of conception or procuring an abortion.” This includes “every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” The law and its broad language were often taken advantage of in the late 1800s and early 1900s, as it could even be used to prosecute those who received medical textbooks or private love letters by mail.
By the 1930s, misuse of the law started to diminish as an appeals court ruled that sex education materials couldn’t be prosecuted under the Comstock Act. Over the years, mentions of contraception were removed from the law, and the Supreme Court began limiting what could qualify as “obscene” under the Act. However, proposals to also eliminate the abortion references in the Act were ignored. As of now, the Comstock Act is still technically law, but the Supreme Court rulings over the years have largely rendered it defunct.
Conservatives are interested in abusing the Comstock Act
Although the Comstock Act is no longer relevant, conservatives are trying to make it so again. The Comstock Act was utilized by the Alliance for Hippocratic Medicine in its lawsuit to restrict access to abortion pills. The plaintfills claimed that the FDA’s 24-year-old decision to approve mifepristone violated the 151-year-old law. Given that the lawsuit was tossed, many are likely hoping that the Supreme Court told the plaintiffs they can’t use an archaic statute to significantly restrict access to abortion pills. Unfortunately, that’s not quite the case.
As mentioned above, the case was tossed due to a lack of legal standing, meaning the Supreme Court did not have to make an official ruling on the Comstock Act argument presented. So, the fear of this argument resurfacing remains. For now, the law remains largely ineffective due to the Biden administration’s interpretation of it. The administration argues it can only be invoked for materials that are sent with the purpose of being utilized “unlawfully.” To prosecute, one would have to prove that a sender mailed abortion pills with the explicit intention that the recipient would utilize them unlawfully. Of course, proving someone’s intent is notoriously difficult to do.
However, a different administration might have a different interpretation of the law. Alliance Defending Freedom, backed by numerous major conservative organizations and former officials from the Donald Trump administration, has crafted a manifesto called Project 2025, detailing what they will do if Republicans get into office in the 2024 Presidential Election. One of the threats it has outlined is interpreting the Comstock Act literally to enforce a nationwide ban on the mailing of abortion pills. On top of that, the manifesto also outlines a plan to essentially remove the system of checks and balances from the government to give the President sole power and to have the federal government run by vetted right-wing loyalists.
These conservatives foresee that an impartial Department of Justice would never enforce the Comstock Act literally. So, they outline their plans to gain total control of the DOJ and utilize it to make the darkest elements of the far-right agenda legal, including enforcing the literal interpretation of the Comstock Act. To be clear, Donald Trump hasn’t explicitly aligned himself with Project 2025 and has claimed he won’t pursue a nationwide abortion ban. However, as long as the Comstock Act remains part of the law and includes abortion language, the threat persists of conservatives finding a way to utilize it to cripple the entire mail system of abortion medication.
Published: Jun 13, 2024 05:53 pm