He called for enactment of an 1873 federal law that would make it a felony to mail “articles designed, modified, or intended to cause an abortion,” or even advice on methods or locations of abortion or contraception. carried out lobbying activities. A subsequent judicial interpretation removed the Comstock Act’s ban on mailed contraceptives, but the purported ban on abortion-related supplies remains on the books. Americans heard the news during Tuesday’s Supreme Court oral arguments over anti-abortion doctors’ efforts to overturn a Food and Drug Administration rule allowing the distribution of mifepristone, which is used in medical abortions. I was reminded of a surprising and alarming fact.
During the hearing, Erin Hawley, an adviser to anti-abortion doctors, argued that the FDA ignored the “plain text” of the Comstock Act, which permanently removed the requirement to administer mifepristone pills to women in person. last year. Ms. Hawley received clear support in this argument from Justices Clarence Thomas and Samuel A. Alito Jr. “This is not a vague part of a complex and vague law,” Justice Alito said. Judge Thomas told lawyers for the drug’s manufacturer, Danko Laboratories, that the “fairly broad” law “specifically targets drugs like yours.”
Although the justices seemed more likely to uphold the FDA for other reasons, the Comstock Act’s emergence from legal dormancy made it more likely that conservatives would seek to use it against reproductive freedom. There is a possibility that a similar attempt will be made.egg Today, nearly two-thirds of all abortions are performed through medication. It should not become a case of “Congress must repeal the law.”
Democrats should lead that effort while they still control the Senate and White House. And it should do so despite legitimate concerns that a failed attempt to repeal the law could paradoxically strengthen its effectiveness. It’s a fight worth fighting. Why do House Republicans refuse to consider the bill or Senate Republicans’ filibuster bill, which would eliminate even the theoretical possibility of transporting mifepristone, which could carry up to five years in prison (the maximum penalty for a first offense)? I would like to ask voters to explain what is going on. (This law also applies to common carriers such as FedEx and UPS.)
In fact, many right-wing groups and individuals are trying to reinstate the Comstock Act. The Heritage Foundation’s Project 2025, a policy blueprint for Donald Trump’s second term involving more than 100 conservative organizations, states that the Trump Justice Department “intends to enforce federal law against the providers and distributors of this information.” It should be announced.” [abortion] Pills. “With Comstock, there is no need for a federal ban,” said Jonathan Mitchell, the former Texas attorney general who enacted the state’s law encouraging civil lawsuits against abortion providers.
Last month, 26 Republican senators and 199 Republican House members signed a friend-of-the-court brief in the mifepristone case. It accused the FDA of “blatant disregard” of the Comstock Act. “These provisions have been federal policy for more than a century,” they wrote. As pharmacy chains prepare to sell mifepristone, nine Republican senators signed a letter to CVS and Walgreens last year warning them that the Comstock Act has a five-year statute of limitations. . As such, he warned that he cannot stop the president-elect’s Justice Department from charging companies and individuals with sales charges. Abortion pills.
Businesses and individuals are probably safe for the time being. That’s because in December 2022, a Biden-appointed person in the department’s Office of Legal Affairs announced that the sender would be allowed to mail mifepristone if the recipient “lacked the intent that the recipient would use the drug illegally.” This is because he issued an opinion interpreting the Comstock Act. ” But the Justice Department under the Trump administration could easily issue new guidance.
Mr. Trump’s selection to the Supreme Court helped the court overturn a federal Supreme Court decision. Roe vs. WadeThis fact means Republican candidates and their parties are paying a political price. For now, Trump is trying to take credit for the pro-life wing of the Republican Party, but is otherwise avoiding the issue. A high-profile effort to repeal the Comstock Act could force him to articulate his position. Either way, this outdated and misogynistic law needs to be wiped from the statute books.
