Anthony Comstock would be delighted.
You know where this is going. The latter-day vice suppressors are trying to use the Comstock Act to make abortion medications, and maybe even all abortions, unavailable — not just in states that prohibit the procedure, but nationwide. The two-drug regimen, mifepristone and misoprostol, has been approved for two decades and now accounts for more than half the abortions in the United States.
The deployment of this antiquated statute exposes the fallacy of the Supreme Court’s insistence that its ruling in Dobbs v. Jackson Women’s Health Organization would simply return the question of abortion to individual states. Antiabortion activists aren’t stopping there.
And it illustrates how the medical landscape has been transformed by the ability to access abortion by taking pills rather than undergoing a surgical procedure. That development makes abortion easier and less expensive to access — and also harder to stop, even in states that ban it.
Enter the Comstock Act. Jonathan F. Mitchell is the lawyer who brought you S.B. 8, the Texas law that banned abortion after six weeks and deputized private citizens to sue over violations, even before the Supreme Court overruled Roe v. Wade. Mark Lee Dickson is a pastor and director of Right to Life of East Texas. Recently, they have been promoting local ordinances creating “sanctuary cities for the unborn” in states that protect abortion rights.
These ordinances hinge in part on the argument that federal law supersedes state abortion policies, and that the 150-year-old Comstock Act makes it illegal for abortion providers or individuals to receive abortion medications — or, indeed, any instruments or equipment used in performing abortions.
“The reality is we have a de facto abortion ban in these statutes [the Comstock Act], which have never been repealed by Congress,” Dickson told me in an interview. “I do believe that every single abortion facility in America is in violation of these statutes.” He didn’t just mean medication abortions — he meant all of them.
Meanwhile, 20 Republican attorneys general earlier this month sent letters to Walgreens and CVS, warning them against making the abortion medications available by mail. The drugstore chains had said they planned to seek approval to dispense the abortion medications that way after the Biden administration dropped the requirement that they be dispensed in person, and only at medical offices.
“The text could not be clearer” that the law prohibits the mailing of abortion medications, the attorneys’ general letter said, adding, menacingly, “Obviously, a federal criminal law — especially one that is, as here, enforceable through a private right of action — deserves serious contemplation.”
Perhaps most ominously, the Comstock Act is also before a federal judge in Texas in a case challenging the Food and Drug Administration’s approval of mifepristone. The antiabortion group in that case argues, among other things, that the FDA’s approval contravenes the Comstock Act.
In a friend-of-the-court brief filed Monday, 22 states endorsed this argument. “The FDA’s actions defy federal criminal law,” the states said.
The Biden administration vigorously disputes this interpretation. The Justice Department’s Office of Legal Counsel, in a memo dated Dec. 23 concluded that the law “does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient will use them unlawfully.” Despite the law’s broad language, the memo said, “Over the course of the last century, the Judiciary, Congress, and USPS [the Postal Service] have all settled upon an understanding … that is narrower than a literal reading might suggest.”
The Justice Department goes on to adopt an aggressive reading that would broadly protect the delivery of abortion medication — including in states where abortion is prohibited. Even then, it argued, some women might still be legally able to use the medication — for example, if their lives are in danger; those sending or delivering the medication wouldn’t know whether they are intended for an unlawful use.
“Therefore,” the memo concluded, “even when a sender or deliverer of mifepristone or misoprostol ... knows that a package contains such drugs — or indeed that they will be used to facilitate an abortion — such knowledge alone is not a sufficient basis for concluding that section 1461 [the law] has been violated.”
I want to see abortion remain as available to women as it can be, post-Dobbs. The varied efforts to use the Comstock Act to prevent that strike me as a flimsy effort to revive an obsolete statute. But we are in a new world, of conservative courts and empowered states. And administrations change. What happens if a Republican Justice Department adopts a more muscular interpretation of the law and launches prosecutions under it?
Comstock biographer Amy Sohn called him “the man who did more to curtail women’s rights than anyone else in American history.” He might not be done with us yet.