At the Supreme Court Tuesday, justices quizzed lawyers about an obscure 19th century law that has become the next front in the legal contest over abortion rights.
“How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” Justice Clarence Thomas asked Jessica Ellsworth, the attorney representing New York-based Danco Laboratories — maker of the abortion drug mifepristone, the FDA approval of which the court is reviewing.
That the Supreme Court is paying attention shows how provisions of a law some considered “dead” can return to the legal front lines, said Mary Ziegler, a University of California at Davis law professor who has written about the act.
In the two years since the court’s decision in Dobbs vs. Jackson Women’s Health Organization overturned Roe vs. Wade it’s become clear that federal legislation banning abortion outright has little chance of passing the U.S. Senate — where Democrats and some Republicans oppose such restrictions — without a political sea change.
Anti-abortion groups hope they can use long-unenforced language from Comstock to fight abortion rights in the courts, and under future Republican presidential administrations to restrict the distribution of medications used in abortions.
“It's sort of emerged, as I would say, as probably the dominant stopgap anti-abortion strategy,” Ziegler said.
The second act of a moral crusade?
The Comstock Act passed in 1873 at the urging of anti-vice crusader Anthony Comstock, who advocated for state and federal action to oppose any sexual materials not aimed at reproduction and marriage.
Among its targets — along with “indecency,” pornography, contraceptives and even criticism of the law — was anything that could be used to conduct or even encourage “abortion.”
In fact, the law made it illegal to mail — and after amendments, to transport across state lines — material intended for any “immoral purpose.”
Comstock was then appointed by Congress as an unpaid special agent of the U.S. Post Office empowered to make arrests under the act — a position he continued to hold until his death in 1915.
His efforts were unrelenting, according to historians.
“Even doctors had to be arrested for supplying things about explaining pregnancy and how to prevent it,” said Southeastern Oklahoma State University professor Brandon Burnette.
Aspects of the act remain enforced today — for example, in criminal cases involving child pornography and human trafficking — while other aspects are long-“dormant," according to legal experts who have studied the law.
Attempts at enforcement have led to various challenges — including a 1936 appeals court ruling that effectively eliminated the contraception ban — and persistent First Amendment litigation.
Congress eventually repealed the birth control language in the law in 1971, but despite efforts by some abortion rights advocates to see the abortion language removed in the decades after 1973’s Roe decision, legislation to do so never gained traction.
Following Dobbs, the Biden Administration’s Justice Department issued guidance that language in some parts of the law referring to “unlawful” abortions mean its provisions apply only in states where abortion is illegal.
Arguing for the Alliance for Hippocratic Medicine against the Food and Drug Administration Tuesday, lawyer Erin Hawley called that conclusion wrong — even though the approval came prior to Dobbs.
“We don’t think that there’s any case of this court that empowers FDA to ignore other federal law,” Erin Hawley said. “The Comstock Act says that (abortion) drugs should not be mailed either through the mail or through common carriers. So we think that the plain text of that, your honor, is pretty clear.”
But Yale University Law Professor Reva Siegel said it’s less clear than that.
“It's really interesting when you go back to the 1800s,” Siegel said. “It’s really modern for people to be able to diagnose pregnancy in an individual woman and so contraceptives and abortifacients were hard to tell apart during that time period.”
But perhaps that’s because abortion was not the central target in Comstock’s crosshairs.
“Abortion was always a pretty small percentage of what the statute was about. So to the extent it was an abortion ban, it was an obscenity law that had abortion as a feature,” Siegel said.
“There were,” she said, “very few abortion- or contraception-related prosecutions.”
During arguments Tuesday conservative Justice Samuel Alito expressed a different view.
“This is a prominent provision. It’s not some obscure subsection of a complicated, obscure law. Everybody in this field knew about it,” he said.
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