Now that it’s fairly clear the “sad doctors” argument before the court yesterday was so pathetically weak they can’t use it to ban Mifepristone, anti-abortion activists are talking about finding a case they can push up to the court next year that will allow it to ban all abortions in the nation, and most birth control pills and devices as a bonus.
How do they plan to do it? With the Comstock Act. You could see and hear the set-up of this future court case in Yesterday’s arguments.
Justice Sam Alito said:
This [Comstock Act] is a prominent provision. It’s not some obscure subsection of a complicated, obscure law. Everybody in this field knew about it.
Erin Hawley was emphatic:
We don’t think that there’s any case of this court that empowers FDA to ignore other federal law. The Comstock Act says that drugs should not be mailed… either through the mail or through common carriers.
And Clarence Thomas laid out the possibility of future litigation when he essentially threatened the lawyer for Danco Laboratories, the manufacturer of Mifepristone:
“How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” He went onto note that the law “is fairly broad, and it specifically covers drugs such as yours.”
In other words, they want the act enforced today.
Bloomberg news laid it out yesterday:
“Do we think the Supreme Court majority is going to rule on the Comstock Act in this case? The answer to that is no,” said Mary Ziegler, a law professor at the University of California at Davis who specializes in reproductive rights. “Do we think that the Comstock Act is going to come up again at some point in the future? The answer to that is definitely.”
So, what the heck is the Comstock Act and why are Republicans trying to revive it before the Supreme Court and in threatening letters to pharmacy chains?
You’ve probably never heard of Anthony Comstock, a Civil War Union soldier and New York postmaster, who died in 1915. You need to learn about him and his legacy, however, as his long fingers are about to reach up out of the grave and wrap themselves around the necks of every American woman of childbearing years.
Anthony Comstock was a mama’s boy who hated sex. His mother died when he was 10 years old, and the shock apparently never left him; women who didn’t live up to her ideal were his open and declared enemies, as were pornography, masturbation, and abortion. He was so ignorant of sex and reproduction that he believed a visible human-like fetus developed “within seconds” of sexual intercourse.
If Hawley’s interpretation is ultimately adopted by the Supreme Court in another case more specifically tailored to it next year—which the anti-abortion movement is working on as you’re reading these words—all abortions in the United States would be ended when drugs and suction and surgical devices designed specifically for the procedure can no longer be shipped to hospitals, clinics, or physicians’ offices.
Comstock spent decades scouring the country collecting pornography, which he enthusiastically shared with men in Congress, and harassing “loose women.” For example, when he visited a belly-dancing show (then a new craze) in Chicago at the Cairo Theatre during the World’s Fair of 1893, he demanded the show be shut down.
As Amy Sohn, who wrote a brilliant Comstock biography titled The Man Who Hated Women, noted:
Despite national controversy and Comstock’s intervention, ultimately the only alteration made to the fair’s belly dancing was costuming: The dancers swapped their gauze blouses for thin woolen undershirts. The vice hunter had lost in Chicago. But he would not forget the dancers, and would have four of them arrested and fined when they came to New York that winter. New York, after all, was Comstockland.
Comstock lobbied for and shepherded through Congress a law passed on March 3, 1873 titled “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.” Today we refer to it as the Comstock Act.
It’s language with regard to abortion is not at all ambiguous:
Every obscene, lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance… designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and
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, or for any indecent or immoral purpose; and
Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and
Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and
Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—
Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
The penalty is also not ambiguous. Persons mailing information about abortion, or drugs or devices to produce an abortion:
S]hall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.
The Biden administration argues that the Comstock Act of 1873 was set aside almost a century ago.
And, indeed, in 1930, the Appeals Court for the Second Circuit ruled in Youngs Rubber Corp. v. C.I. Lee & Co that the law couldn’t apply to things sent through the mail that are legal, even if they were illegal at the time of the passage of the Comstock Act. (The case involved condoms manufactured by Youngs Rubber.)
“Such a construction,” the court wrote, “would prevent mailing to or by a physician of any drug or mechanical device ‘adapted’ for contraceptive or abortifacient uses, although the physician desired to use or to prescribe it for proper medical purposes.”
The law has been amended by Congress four times (in 1955, 1958, 1971, and 1994), but the language above was never struck because legislators figured the 1930 appeals court’s ruling rendered it nugatory.
But don’t tell that to Trump’s appointee, Texas District Judge Matthew Kacsmaryk of Amarillo, who ruled last year that Mifipristone was to be banned nationwide: He based a large part of his decision on the plain language of the Comstock Act.
And don’t tell it to the three right-wing judges who heard the appeal of Kacsmaryk’s decision before the Fifth Circuit Court of Appeals on its way to SCOTUS.
When the Biden administration’s attorney argued before the Fifth Circuit that Kacsmaryk’s decision, based largely on the Comstock Act, was “unprecedented,” Circuit Judge James Ho—also a Trump appointee, who personally swore his good friend Kacsmaryk into his office, and whose wife is a paid anti-abortion activist—interrupted her with a curt snap, saying:
I guess I’m just wondering why not just focus on the facts of this case rather than have this sort of “FDA can do no wrong” theme.
That appeals court, made up of a George W. Bush appointee and two Trump appointees, earlier had ruled in their preliminary finding to hear the case that they disagreed with the Biden administration’s assertion that, to quote the three judges, “the [Comstock] law does not mean what it says it means.”
When the Biden interpretation of the Comstock Act was brought up in oral arguments, the Bush appointee, Judge Jennifer Walker Elrod, said there is “some disagreement” about whether previous court rulings actually invalidated the law. After all, it’s never been adjudicated before the Supreme Court and is still on the books.
This battle promises to be long and hard-fought, and the only solution will be for Congress to take this gun out of Republicans’ hands by overturning the Comstock Act itself.
Republican members of Congress agree, and want the Comstock Act enforced nationwide now. They think they don’t even need a ruling from the Supreme Court: They just need a Republican president.
In a letter sent to CVS (among other pharmacy chains), Mississippi Republican Senator Cindy Hyde-Smith and eight other Republican senators (Lankford, Daines, Braun, Rubio, Marshall, Risch, Crapo and Blackburn) wrote that the Biden interpretation (and that of Congress in 1955, 1958, 1971, and 1994) is wrong.
They explicitly asserted that the Comstock Act is still in effect and they want it enforced:
“We write to express our support and agreement with 21 [Republican] state attorneys general,” they wrote “who have reminded you that Federal law in 18 U.S.C. 1461-1462 [the Comstock Act] criminalizes nationwide using the mail, or interstate shipment by any express company or common carrier, to send or receive any drug that is ‘designed, adapted, or intended for producing abortion.’”
The 1930 court ruling that lawmakers and judges had, for over 90 years, believed only applied the Comstock Act to items that were illegal (like child porn), Senator Hide-Smith wrote:
[D]oes not protect CVS or any other individual or entity from being prosecuted within the five-year statute of limitations for the illegal mailing or interstate shipment of abortion drugs… even for conduct that occurs today.
Keep in mind, under the plain language of the Comstock Act this could also apply to birth control pills, IUDs, and other things used to prevent pregnancy. And, of course, pornography.
The lawyer for Republicans defending Kacsmaryk’s ruling, Erin Hawley, went so far as to assert before the Fifth Circuit Court of Appeals that even physicians and pharmacies shouldn’t be able to receive Mifipristone or other drugs that could produce an abortion via the mail, FedEx, or UPS:
What the Comstock law says is that it is improper to mail things that induce or cause abortions, which is precisely the action the FDA took in 2021 when it permitted the mailing of abortion drugs.
If Hawley’s interpretation is ultimately adopted by the Supreme Court in another case more specifically tailored to it next year—which the anti-abortion movement is working on as you’re reading these words—all abortions in the United States would be ended when drugs and suction and surgical devices designed specifically for the procedure can no longer be shipped to hospitals, clinics, or physicians’ offices.
This is no idle threat.
As Washington Post reporter Dan Diamond wrote for his Substack newsletter, anti-abortion activist Mark Lee Dickson, who’s helped several cities around the country put into law local versions of the Comstock Act, told him:
If a future president were to enforce these federal statutes, then they could shut down every abortion facility in America.
This is the specific goal of these mostly Catholic religious fanatics: to completely outlaw all abortion and radically restrict access to birth control. And they are not going to give up just because it looks like the Supreme Court isn’t going to ban Mifepristone this year.
Such a case would, based on what they said yesterday, have Republicans in the Senate, Clarence Thomas, and Sam Alito gleefully rubbing their hands in anticipation.
This battle promises to be long and hard-fought, and the only solution will be for Congress to take this gun out of Republicans’ hands by overturning the Comstock Act itself.
And that’s unlikely to happen unless or until Democrats take back the House, hold the White House, and gain a filibuster-proof majority in the Senate (or kill the filibuster).
The stakes this fall couldn’t be higher.
