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Reviving Comstock: Unveiling the Anti-Abortion Strategy in Post-Roe America

After the overturning of Roe v. Wade and Planned Parenthood v. Casey by Dobbs v. Jackson, a separate legal tactic by the anti-abortion movement threatens access to abortions in states where abortions remain legal. The key lies within a rarely enforced 150-year-old law called the Comstock Act. Opponents of abortions have turned to the Comstock Act as a legal basis to ban the mailing of abortion-related goods across all state borders, starting with the abortion pill.

What is the Comstock Act?

Lobbied by Anthony Comstock in his fight against what he saw as the culture of moral corruption, the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use — popularly known as the Comstock Act — was passed by Congress in 1873.1 The anti-obscenity bill had a broad scope of enforcement due to the ambiguity of defining “lewd material.”2 In particular, the statute defined contraceptives as obscene and illicit. It prohibited the mailing of materials like pornography or anything “intended for the prevention of conception or procuring of abortion” across state lines through express carriers like FedEx or UPS.3

However, in 1918, the New York State Court of Appeals ruled in the case The People of the State of New York v. Margaret H. Sanger that physicians can legally prescribe contraceptives to married patients despite the Comstock Act.4 With the passage of the 19th Amendment and the economic need for family planning during the Great Depression, federal courts followed suit to further limit the Act’s scope in United States v. One Package of Japanese Pessaries.5 Griswold v. Connecticut established a constitutional right to contraception, followed by the repeal of the portions related to contraceptives in 1971 by Congress.6 By Roe v. Wade, the Comstock Act was considered obsolete by lawmakers and the public, a relic of a more conservative time.7 Nonetheless, it remained in federal law.

Two Conflicting Interpretations Lead to Legal Battles

In March 2023, the Alliance for Hippocratic Medicine brought a case against the F.D.A for its approval of mail-dispensed mifepristone.8 Part of a two-drug regimen for medication abortion, mifepristone was first approved by the F.D.A. in 2000. This abortion pill has a success rate of 99.6% with a 0.4% risk of major complications. It is one of the most used methods of abortion, accounting for over half of all abortions.9 In this lawsuit, the Alliance for Hippocratic Medicine argued that the F.D.A.’s approval in 2021 violated the Comstock Act. This argument garnered the support of Trump appointee Judge Matthew J. Kacsmaryk of the Northern District of Texas. He issued a preliminary ruling to block the F.D.A.’s 23-year-old approval of mifepristone, stating that the F.D.A’s allowance of the “dispensing of chemical abortion drugs through mail violates unambiguous federal criminal law.”10 The U.S. Court of Appeals for the Fifth Circuit in New Orleans partially struck down his ruling, which allowed mifepristone to remain on the market but reinstated pre-2016 restrictions on the drug. The restrictions prevented mifepristone from being prescribed via telehealth and dispensed by mail, instead requiring three visits to a doctor and in-person pick-up, greatly curbing access to medication abortions.11 Following the decision, the Justice Department’s Office of Legal Counsel issued a memorandum on the case that contradicts both interpretations by both Judge Kacsmaryk and the Fifth Circuit, stating that medication abortion drugs can be sent by mail if there’s no intent for the recipient to use them unlawfully.12

In the eye of the storm of injunctions, opinions, and court decisions lie two contradictory interpretations of the Comstock Act. The literal interpretation — championed by Judge Kacsmaryk — means that the act bans the mailing of “every article, instrument, substance, drug, medicine or thing” that produces “abortion.”13 In this case, mifepristone falls under the category of a drug that produces abortion despite its uses in treating other conditions like miscarriages. On the other hand, the Justice Department opinion argues for a limited interpretation of the Act, concluding that “section 1461 does not prohibit the mailing, or delivery or receipt by mail” of medication for abortions, where the sender “lacks the intent that the recipient of the drugs will use them unlawfully.”14 This is based upon “a long-standing judicial construction of the Comstock Act, which Congress ratified, and USPS itself accepted.” Which of these interpretations will be adopted is on the docket of the U.S. Supreme Court on March 26, 2024, with a decision expected in June.15

Implications of Reviving the Comstock Act on Reproductive Rights

The Dobbs decision fundamentally changed the legal and policy landscape of reproductive rights in the U.S. by reviving laws that were never repealed but were disregarded under the protections of Roe v. Wade. Reviving these statutes has created mass uncertainty and subjective judgment calls. Leaving the Comstock Act out of the legal strategy of the pro-choice movement was a mistake decades in the making that can now potentially impact the reproductive care of millions of Americans. The Comstock Act champions the belief that women’s bodies exist solely for the goal of reproduction, a manifestation of the structure of coercion and violations that underlie American legal and healthcare systems.

If the lawsuit is determined to be legally sound, a ruling by the Supreme Court can fall one of three ways: 1) preserve full access to mifepristone, 2) impose restrictions but enable access, or 3) withdraw approval of the drug.16 If the Supreme Court affirms the Texas injunction (option 3) or the Fifth Circuit ruling (option 2), it furthers the legitimacy of a textual reading on the Comstock Act without even needing to address that line of argumentation. If read literally, the Comstock Act has much broader implications beyond medication abortions. It can be used to ban the mailing of anything that was designed, adapted, or intended to be used in an abortion procedure.17 This would ban goods like surgical instruments and medical equipment received through interstate or foreign commerce. Not only would this end medication abortions (used in two-thirds of abortions), but it would effectively end all forms of legally legitimate abortion procedures in all 50 states.18 That bans approximately 620,000 abortion procedures yearly, with the burden falling on people with uteruses.19 Furthermore, the Telecommunications Act of 1996 updated the Comstock Act’s provisions to include the Internet, meaning that any discourse around abortions online — no matter the geographical location — can result in a punishment of five years in jail and/or $250,000 in fines.20 Although the attorney general under President Biden has openly stated that she would not enforce the Comstock Act, there is no guarantee that there will be no prosecutions under future administrations.21

Those in the conservative policy space are aware of the potential of the Comstock Act and vocal about its future enforcement. Jonathan F. Mitchell, a lawyer for Donald Trump, has been quoted “We don’t need a federal ban when we have Comstock on the books.”22 Project 2025 by the Heritage Foundation has laid out a detailed legal plan to ban abortion across the U.S., the center of which is the Comstock Act.23 The memorandum urges the next administration to “enforce federal law against providers and distributors of [abortion] pills.”24 Prosecutions under Comstock mean that the administration can ban abortions nationwide without passing any new laws, circumventing Congress, and any democratic procedure.

Even in ambiguous cases, the fear of legal criminal prosecution alone is enough to discourage patients and providers from seeking and providing abortion care. That wave has already begun. CVS and Walgreens have announced that they won’t sell the abortion pill mifepristone in 20 states after receiving legal threats from the state attorney generals.25 Undoubtedly, these restrictions on abortion care will significantly decrease access to reproductive care, increase the number of children living in poverty, and increase racial inequities in health and socioeconomic outcomes.26

Potential Courses of Action to Advance Reproductive Rights

Some on the pro-choice side have pointed to the availability of alternative medications and the F.D.A.’s singular power to regulate drugs in the American market as a reprieve.27 However, reproductive rights in blue states are just as frail under the enforcement of the Comstock Act as those in red states. Any plan to restore reproductive rights in the U.S. needs to be paired with curtailing the power of the Comstock Act and not simply as a reactionary action from anti-abortion lawsuits.

These actions need to be enacted on a congressional level, as executive orders are vulnerable to regime changes and judicial reviews up to interpretation. There are two possible courses of action for policy and lawmakers on the national scale: repeal the Act or amend the Act. Both options face legislative challenges. Notably, although sections of the Act about contraception were repealed in 1971, an attempt in 1996 by a bipartisan group of House members to repeal the provision regarding the mailing of abortion materials was unsuccessful.28 Some theorize that the Democratic party has not acted to repeal or amend the law ahead of FDA v. Alliance for Hippocratic Medicine so as not to give legitimacy to the anti-abortion legal strategy.

Legal scholars point to the vagueness of the Act as a compelling argument for both repeal and amendment. The legality of the mailed items is a critical difference between a textual and limited interpretation of the Act. The word “illegal” does not appear in the text of the statutes, yet case law on 18 U.S.C. §§ 1461 and 1462 have required evidence that the mailed items are intended to be used for an illegal abortion.29 To advance abortion rights, a precise limited construction of “illegality” needs to be written into the Comstock Act, including whether the legality lies within a state or federal context. Currently, there is not a determined national standard for an “illegal abortion,” but only a lack of federal protection for abortions resulting from the Dobbs case.30 Making the legal standard local means that the legality of the goods being mailed would vary depending on the state to which they are sent, introducing complexities for goods that are produced and transported across state lines. Congress’s current decision to not amend the law to include “illegal” or provisions for cases of rape, miscarriages, and the life of a pregnant woman, could be interpreted as an implicit deferment to judicial construction and an agreement to a textual interpretation of the Act.31 Neither of those bodes well for reproductive rights.

The Comstock Act is a significant impediment to reproductive freedom and access to safe, effective abortions. Pro-choice stakeholders must recognize the urgency of addressing this outdated legislation that uses 1800s social standards to regulate the bodies of people in 2024.

  1. Public Broadcasting Service, “Anthony Comstock’s “Chastity” laws, PBS, ↩︎
  2. Public Broadcasting Service, “Anthony Comstock’s “Chastity” laws.” ↩︎
  3. Ibid. ↩︎
  4. Akshmeeramya Malladi, “The People of the State of New York v. Margaret H. Sanger (1918),” Embryo Project Encyclopedia, January 22, 2018, ↩︎
  5. Malladi, “The People of the State of New York v. Margaret H. Sanger (1918).” ↩︎
  6. Public Broadcasting Service, “Anthony Comstock’s “Chastity” laws.” ↩︎
  7. Luke Vander Ploeg and Pam Belluck, “What to Know about the Comstock Act,” The New York Times, May 16, 2023, ↩︎
  8. Abbie VanSickle, and Pam Belluck, “The Abortion Pill Ruling: What’s Happened, What’s at Stake, What’s Next,” The New York Times, May 17, 2023, ↩︎
  9. Center for Reproductive Rights, “Alliance for Hippocratic Medicine v. FDA,” accessed March 26, 2024, ↩︎
  10. VanSickle and Belluck, “The Abortion Pill Ruling: What’s Happened, What’s at Stake, What’s Next.” ↩︎
  11. VanSickle and Belluck, “The Abortion Pill Ruling: What’s Happened, What’s at Stake, What’s Next.” ↩︎
  12. “Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions,” Memorandum Opinion For the General Counsel United States Postal Service, December 23, 2022, ↩︎
  13. Alliance for Hippocratic Medicine et al v. U.S. Food and Drug Administration et al., no. 2:2022cv00223 – Document 137 (N.D. Tex. 2023). ↩︎
  14. “Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions,” Memorandum Opinion For the General Counsel United States Postal Service. ↩︎
  15. Susan Rinkunas, “Sen. Elizabeth Warren Fires Warning Shot at Supreme Court over Zombie Law That Could Ban Abortion,” Jezebel, March 4, 2024, ↩︎
  16. VanSickle and Belluck, “The Abortion Pill Ruling: What’s Happened, What’s at Stake, What’s Next.” ↩︎
  17. Melissa Gira Grant, “The Zombie Law Trump Wants to Use to Ban Abortion Nationwide,” The New Republic, February 20, 2024, ↩︎
  18. Grant, “The Zombie Law Trump Wants to Use to Ban Abortion Nationwide.” ↩︎
  19. Jeff Diamant, Desheer Mohamed, and Rebecca Leppert, “What the Data Says about Abortion in the U.S.” Pew Research Center, March 25, 2024, ↩︎
  20. Ebba Brunnstrom, “Abortion and the Mails: Challenging the Applicability of the Comstock Act Laws Post-Dobbs,” Columbia Human Rights Law Review 55 (2024). ↩︎
  21. VanSickle and Belluck, “The Abortion Pill Ruling: What’s Happened, What’s at Stake, What’s Next.” ↩︎
  22. Lisa Leter and Elizabeth Dias, “Trump Allies Plan New Sweeping Abortion Restrictions,” The New York Times, February 17, 2024, ↩︎
  23. Jonathan Swan and Maggie Haberman, “Heritage Foundation Makes Plans to Staff next G.O.P. Administration,” The New York Times, April 20, 2023, ↩︎
  24. Swan and Haberman, “Heritage Foundation Makes Plans to Staff next G.O.P. Administration.” ↩︎
  25. Tom Murphy, “Walgreens Won’t Sell an Abortion Pill in 20 States After Threats of Legal Action. Here’s What that Means,” PBS News Hour, March 3, 2023, ↩︎
  26. VanSickle and Belluck, “The Abortion Pill Ruling: What’s Happened, What’s at Stake, What’s Next.” ↩︎
  27. Matthew Perrone, “What Does the Comstock Act, a Law from the 1870s, Have to Do with Abortion Pills?” PBS News Hour, April 8, 2023, ↩︎
  28. VanSickle and Belluck, “The Abortion Pill Ruling: What’s Happened, What’s at Stake, What’s Next.” ↩︎
  29. Brunnstrom, “Abortion and the Mails: Challenging the Applicability of the Comstock Act Laws Post-Dobbs.” ↩︎
  30. Ibid. ↩︎
  31. Ibid. ↩︎