An obscure 1800s law is shaping up to be the center of the next abortion battle – legal scholars explain what's behind the Victorian-era Comstock Act
Anti-abortion groups are looking for new ways to wage their battle against abortion rights, eyeing the potential implications of a 150-year-old law, the Comstock Act, that could effectively lead to a nationwide abortion ban.
- Anti-abortion groups are looking for new ways to wage their battle against abortion rights, eyeing the potential implications of a 150-year-old law, the Comstock Act, that could effectively lead to a nationwide abortion ban.
- If courts find that the FDA has the authority to approve mifepristone for abortion, the Comstock Act could still prevent the pill’s distribution.
- But it’s important to understand that the Comstock Act is a federal law that applies to states, regardless of their approach to abortion.
The history of the Comstock Act
- Although prosecutions under the Comstock Act were brought in the early 1900s, enforcement started to wane by the 1930s.
- In 1983, for example, the Supreme Court found that applying the Comstock Act to prohibit mailed advertisements about contraceptives violated the First Amendment.
- No court has since ruled decisively to actually enforce the Comstock Act.
Applying the Comstock Act today
- As anti-abortion rights groups try to reinvigorate the Comstock Act, the question is what the law covers, exactly.
- Texas federal court Judge Matthew Kacsmaryk – who issued a preliminary decision on April 7, 2023, effectively rescinding the FDA’s approval of mifepristone – said the Comstock Act prevented the mailing of abortion pills.
- It emphasized, however, that it was “not required to definitively interpret the Comstock Act” because it was not issuing a final ruling.
Extending to other lawsuits
- Jonathan Mitchell, a conservative lawyer and former solicitor general of Texas, is trying to use the Comstock Act to outlaw abortion altogether.
- This is part of a political campaign called Sanctuary Cities for the Unborn – orchestrated by Mitchell and conservative pastor Mark Lee Dickson.
- Some of these places now prohibit the shipment and receipt of abortion drugs or medical items used for abortions.
- These ordinances have led to two lawsuits questioning their legal status.
Mailing, distributing or banning?
- In that case, little or nothing would change in states where abortion is legal.
- Or, the court could decide that the Comstock Act bars mailing mifepristone regardless of its user’s intent, making access to medication abortion more difficult.
- Such a ruling would effectively impose a nationwide ban on abortion, even in states that allow abortions.