A 150-year-old law could put the abortion pill in peril, it appears
Anthony Comstock would be delighted.
In 1873, Comstock, who headed the New York Society for the Suppression of Vice, persuaded Congress to pass “An Act for the Suppression of Trade In, and Circulation of, Obscene Literature and Articles of Immoral Use.” Popularly known as the Comstock Act, a watered-down version of the law remains on the books today. Contraceptives are no longer deemed “articles of immoral use,” but it is still a felony to mail any “article or thing designed, adapted, or intended for producing abortion.”
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 SB8, 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 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“The reality is we have a de facto abortion ban in these statutes [the Comstock Act] which have never been repealed by Congress,” Dickson told me. “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 sent letters to Walgreen’s 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. 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.
Comstock biographer Amy Sohn called him “the man who did more to curtail women’s rights than anyone else in American history.” He may not be done with us yet.