ANTIQUATED LAW RESURFACES IN ABORTION PILL DEBATE

Abortion-rights supporters breathed a collective sigh of relief last week after oral arguments before the U.S. Supreme Court in a case attempting to limit women’s access to a drug routinely used in early-term medication abortions.

Though the court likely won’t rule for several months, most analysts say questions and comments from even several of the court’s conservatives indicate they doubt the plaintiffs have legal standing.

There is cause for pro-choice advocates to temper their optimism, though: Justices Samuel Alito and Clarence Thomas both made comments indicating they believe the Comstock Act, a draconian 19th century federal law that attempted to enforce a Christian version of morality, might be relevant in the future of the abortion debate. If so, it could, in theory, threaten abortion access even in states where it’s currently legal.

Mifepristone is part of a two-drug regimen used in almost two-thirds of all U.S. abortions. The process, which is limited to the first 10 weeks of pregnancy, has been shown to be safe and effective during the two decades since it was federally approved.

But the conservative U.S. Court of Appeals for the 5th Circuit last year sided with plaintiffs who maintain the Food and Drug Administration overstepped its authority by loosening regulations on the drug in recent years, including allowing it to be mailed to women without an inperson doctor’s visit.

The plaintiffs are a coalition of anti-abortion medical professionals who claim they face personal harm from the loosened regulations. Because there are rare instances when the pills lead to complications requiring hospitalization, they argue, it could put those doctors in the position of having to violate their consciences by providing abortionrelated care.

But both Alito and Thomas made comments indicating they are potentially open to another of the plaintiff’s arguments: That the 1873 Comstock Act’s long-dormant provision outlawing the mailing of abortion medication is still enforceable.

The Comstock Act was named for moral crusader Anthony Comstock, who used his power as a U.S. postal inspector to arrest and convict people under the act for such offenses as mailing information about sex, contraception and anything related to abortion.

While much of the law has been invalidated by modern court precedent, and the abortion element has gone unenforced for decades, it has never been fully repealed by Congress.

In the current case, the plaintiffs maintain that the Comstock Act says plainly that abortion drugs cannot be sent through the mail, period. The Biden administration has taken the position that the Comstock prohibition on mailing abortion-related materials doesn’t apply when it’s mailed to states where abortion remains legal.

And that’s where the nightmare scenario comes in that some abortion-rights advocates have been warning of: Suppose a future presidential administration, intent on ending abortion rights everywhere, interprets the Comstock Act to prohibit all mailing of abortion-related materials, even those bound for states where the procedure is legal.

In theory, some say, that could effectively end not only mail-order abortion pills for individuals at home but also clinical abortion services.

That’s because today, virtually every drug and piece of equipment involved in the abortion process (as in any other medical procedure) is mailed at some point in the supply chain.

Some have suggested that the Comstock Act should be repealed now, before a future administration can weaponize it. That would be ideal but unlikely given Congress’ general paralysis on hot-button issues today.

So, the only protection against that worst-case scenario is at the ballot box this November.