Anthony Comstock, modest even by Victorian standards, ranks as one of the most bizarre and subversive figures in American history. Comstock, founder of the New York Society for the Suppression of Vice in 1873, prosecuted women for selling contraceptives and assisted in abortion, and boasted of driving them to suicide. As a federal postal inspector, he raided a museum that was selling nude paintings, including a copy of “The Birth of Venus,” which a court ordered to be confiscated. He viewed newspapers, magazines, and novels as demonic influences that promoted “evil reading” and encouraged the destruction of books.
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 lifted 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 argument over anti-abortion doctors' efforts to overturn a Food and Drug Administration rule that allows the distribution of mifepristone, which is used in medical abortions. I was reminded of a surprising and alarming fact.
At the hearing, Erin Hawley, an attorney for anti-abortion doctors, argued that the FDA ignored the “plain text” of the Comstock Act last year when it permanently removed the requirement to directly administer mifepristone pills to women. did. 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 was “specifically targeted at drugs like yours.”
Although the justices seemed likely to uphold the FDA for other reasons, the Comstock Act's emergence from legal dormancy means that nearly two-thirds of all abortions are now performed. In a post-ROE world, this could presage more conservative attempts to use the law against reproductive freedom. This is done through drug therapy. It should not become a case of “Congress must repeal the law.''
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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 would 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 accusing 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 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 “lacks the intent that the drug will be used 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.
Trump's Supreme Court picks helped overturn Roe v. Wade in court, but Republican candidates and their party are paying a political price for this fact. 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 book.
