WHEAD OF THE The Supreme Court decided last year that the American constitution does not guarantee the right to abortion, it returned the case to lawmakers. In the months since activists have pushed for a national ban. This Congress, which is divided on the issue, will soon pass a law limiting access to abortion across the country. So pro-life activists have turned to one that’s already on the books: the Comstock Act, a 150-year-old anti-life law. This historical oddity, which has not been fully reversed, could seriously hinder access to abortion. What is the Comstock Act – and how could it be resurrected?
Anthony Comstock (pictured), the law’s leading advocate, was a 19th-century moral activist. Exasperated by the ease of smut, Comstock pushed Congress to pass a federal anti-obscenity law. In 1873 to support him he organized an exhibition of offensive objects at the Capitol, which included obscene carvings, sex toys, contraceptives and abortion aids. Within months the Comstock Act was passed. The sweep of the things he affected was extensive, but the methods were concentrated; the act itself did not ban the items but it did ban sending them by mail. It covered anything “indecent, indecent, inflammatory or vulgar”. The act was later amended to clarify that this includes anything designed or “modified” for abortion.
He had a great influence. At the end of the 19th century the law was used to prevent the distribution of everything from reproductions of neoclassical paintings to anatomy textbooks, as well as contraceptives and drugs that promote abortion. But as case law expanded free speech and privacy rights, the Comstock Act fell into disuse. When Roe v. Wade established a constitutional right to abortion in 1973, which overrode the last substantive elements of the Act. It became a legal fossil.
Recently it was dug up. It was cited by an anti-abortion group that sued the Food and Drug Administration (FDA), the American regulatory agency for medicines, over approving mifepristone, one of the two drugs used to induce abortion. (A few years ago, the FDA had allowed the pill to be distributed through the mail.) Matthew Kacsmaryk, the federal judge in Texas who ruled against the FDA in that case on April 7, agreed that the Comstock Act “clearly opposes mail-order abortions.”
Reviving the act would have implications beyond mailing contraceptive pills directly to women. Applying it to the letter would also mean banning factories from delivering tubes and medical supplies to clinics, even if they use private mail carriers. Some anti-abortion advocates have been pushing this explanation: 20 Republican lawmakers wrote to national chemist chains in February urging them not to offer abortion pills – on the basis of the Comstock Act. In New Mexico, a state with liberal abortion laws, some city and county governments have invoked the act in their efforts to ban abortion. Pro-life activists hope that the uncertainty about the law will lead to a case before the High Court that will result in an order to strictly enforce it. In the meantime, they hope the law will have a chilling effect on abortion providers. Laurie Sobel, an expert on women’s health care at KFF, an American non-profit organization, warns that because clinics do not make their products on site, a Supreme Court decision that requires the strict implementation of the law to “shut down abortions throughout the country. just by shutting down the circulation system.”
The Justice Department argues that legal precedent has narrowed the scope of the Comstock Act. Under the standard established in a humorously named case from 1936, United States v One Pack of Japanese Pessaries, the Comstock Act can only stop the distribution of materials for “illegal” use. The department also argues that since there are many legal uses for medications and supplies used in abortion, in practice the law cannot be enforced.
Legal action could be avoided if Congress repealed – or at least clarified – the act. However, just as it is unlikely to prevent abortion, so it is unlikely to prevent this law. That means it could be left to the High Court to decide which interpretation should be used. Legal precedent is clear, says Mary Ziegler, a legal historian: She believes anti-abortion advocates are relying on outdated law. But a court “which is not indifferent to precedent and legislative history and which defines itself as a textualist” can rule the way regardless, she said. It would respond to mail-Red normal – the judges could argue that it is the job of the legislators to restore the law, not theirs. Even then, new boundaries would have to be defined and it would be up to the Department of Justice to enforce them. That is unlikely to be a priority for President Joe Biden’s administration. The next president, however, may feel differently. ■
