As rules allowing the distribution of the abortion drug mifepristone move rapidly toward the Supreme Court, the anti-abortion movement is turning a Victorian era anti-vice law designed to control public morality through the policing of mail.
In their decisions restricting the distribution of mifepristone, District Court Judge Matthew Kacsmaryk, a Donald Trump appointee, and two other Trump-appointed judges on the Fifth Circuit Court of Appeals adopted interpretations of the 1873 Comstock Act that could lead to a total nationwide ban on abortion.
Enacted at the height of the Victorian Era, the federal Comstock Act and state-level copies authorized the Postal Service to search the mail for anything that could corrupt public morals. The banned materials ranged from pornographic pictures and drawings, literature deemed obscene, informational documents explaining sex, sexuality, contraception and abortion, advertisements for contraception and abortion and any item that could be used for contraception or abortion.
The law was used to prosecute thousands of people and seize hundreds of thousands of mailed papers, pictures and objects, including more than 8,000 boxes of medication used for abortion from 1873 to 1907. The legal crackdown led by the law’s namesake, postal inspector and moral crusader Anthony Comstock, faced strong opposition from a new wave of feminists and progressive and libertarian-minded activists. As public sentiment changed over the years, the law fell into disrepute, with its supporters mocked for practicing prudish “Comstockery.”
Its restrictions fell one by one in the middle of the 20th century following a series of court decisions endorsing free speech and legalizing contraception, in Griswold v. Connecticut, and then abortion, in Roe v. Wade, leaving it with little practical application outside of the distribution of child pornography.
But then five conservatives on the Supreme Court overturned the right to an abortion granted in Roe in the 2022 case of Dobbs v. Jackson Women’s Health Organization. While Congress had removed the section of the Comstock Act restricting the distribution of materials related to contraception following Griswold, it never removed the restrictions on abortion. Suddenly, the Comstock Act was back in play.
The decisions in both the district and appeals courts in the Fifth District show that conservative judges are ready to interpret the Comstock Act’s abortion restrictions in a broad manner that could not only make it impossible to mail abortion drugs, but also for any abortion clinic to operate anywhere in the country.
“This is probably the most promising path forward to get to a national ban on abortion,” said Mary Ziegler, a law professor at University of California-Davis and a historian of the anti-abortion movement.
The law is now a live issue in the courts and should be soon in the 2024 presidential election. Since the law is already on the books, a presidential administration opposed to abortion could order the law to be enforced without waiting for the courts to do anything. This could effectively make it illegal to operate as an abortion provider anywhere in the country.
The resurrection of the Comstock Act as an anti-abortion weapon began in Eastern New Mexico, where Pastor Mark Lee Dickson of Right to Life East Texas led a campaign to get towns and counties to enact ordinances using the Comstock Act’s language to effectively ban abortion within their boundaries.
Dickson and former Texas Solicitor General Jonathan Mitchell had already paved new ground in anti-abortion law in Texas as the architects of the state’s anti-abortion law enacted as SB 8 in 2021. Passed before the Supreme Court overturned Roe, SB 8 found a way around Roe’s abortion protections by authorizing private citizens to file civil suits against anyone providing or helping someone obtain an abortion.
Mitchell and Dickson first deployed the legal framework for SB 8 in Waskom, Texas, on the border of Louisiana. It was rumored that an abortion provider from Louisiana might move their practice across the state line into Waskom. Dickson helped the city council enact an ordinance that used the language that would eventually become SB 8. Their success led them across the state to enact more local ordinances until eventually the legislature passed a statewide law.
After the Supreme Court’s decision in Dobbs, abortion became illegal in Texas. Some abortion providers looked to relocate to New Mexico’s border with Texas in the city of Hobbs. Dickson worked to get the city to enact an ordinance effectively banning abortion there. But instead of using civil suits to enforce it, Dickson turned to the language of the Comstock Act.
Specifically, Dickson relied on Section 1641 and Section 1642 of the 150-year-old law. These parts of the law ban the mailing or transportation of any “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,” and “any drug, medicine, article, or thing designed, adapted or intended for producing abortion,” respectively.
A group of 20 Republican attorneys general cited these Comstock Act provisions in a letter to Walgreens and CVS to pressure the two pharmacies to stop providing mifepristone to patients.
These two sections of the Comstock Act were also cited in both decisions on mifepristone by Kacsmaryk and the three-judge panel of the Fifth Circuit Court of Appeals. They argued that a reading of the plain text of the law suggests that the mailing of abortion drugs for any reason is illegal.
This contradicts an opinion by the Biden administration’s Office of Legal Counsel put out in December 2022 making the legal case for why the Comstock Act does not make the mailing of abortion drugs like mifepristone illegal. The opinion argues that through a series of lower court decisions and legal guidance, the Comstock Act’s restrictions only apply when the sender knowingly intends for them to be used “unlawfully.”
Calling the interpretations of the Comstock Act adopted in the mifepristone decisions “absolutely bonkers,” Jennifer Dalven, director of the Reproductive Freedom Project at the ACLU, said that if courts adopt them it “would be absolutely catastrophic.”
Dickson agrees that this interpretation of the Comstock Act would be catastrophic for abortion providers, but with one big difference. He believes that there is no need for a judicial interpretation on the issue — even if he hopes for one. Instead, he says that there is already “a de facto abortion ban” found in Comstock Act Sections 1461 and 1462.
“I don’t think we need a court opinion to say that these laws are enforceable,” Dickson said.
The Biden administration may choose not to enforce the Comstock Act, he said, but that doesn’t mean a different presidential administration couldn’t interpret the law in a way that allows them to prosecute abortion providers, abortion drug manufacturers and anyone who violates it.
“A new Republican administration could decide to bring action against the abortion industry for violating [the Comstock Act’s] section 1461 [and] 1462,” Dickson said.
While the Supreme Court, which stayed the Fifth Circuit’s decision on Friday while it considers the case, may simply dismiss the mifepristone case for lack of standing or rule on it without commenting on the Comstock Act, this issue is not going away.
Both Dickson and Ziegler believe that the Supreme Court’s conservatives will adopt some form of the interpretations of the Comstock Act used by Kacsmaryk and the Fifth Circuit appeals court judges at some point.
Even if they don’t, the election of an anti-choice Republican president in 2024, as Dickson suggests, could effectively ban abortion nationwide by launching prosecutions of abortion providers under the Comstock Act.
“Democrats have two options, they can just hope the Supreme Court doesn’t interpret the Comstock Act the way the Fifth Circuit did and hope that this issue just goes away or they can actually get rid of the Comstock Act,” Ziegler said.
Unlike a court ruling affirming fetal personhood rights to impose a national abortion ban, the threat of an effective ban through the Comstock Act could be eliminated by simply repealing the law. And even if Republicans, who control the House, won’t go along with it, the politics are on Democrats’ side.
“For Democrats, there is no losing on a repeal proposal because, even if Republicans won’t vote for this, it would be great to get them on the record about why it’s a good idea to have a law that says you can’t mail any drug intended or adapted for abortion, including non-abortion drugs, from the moment of fertilization,” Ziegler said. “Because that is 100% not where the American people are on this.”
If not, Dickson promises that the Comstock Act will force the hands of abortion providers to shut down entirely.
“When I’m reading these court opinions, I’m seeing that what is happening is the abortion industry is going to be Comstocked,” Dickson said. “The abortion industry cannot escape this federal law — this de facto federal abortion ban. Sooner or later, the Comstock Act will catch up with the abortion industry.”