Alito and Thomas continued to mention Comstock.  This spooked abortion rights advocates.
Alito and Thomas continued to mention Comstock.  This spooked abortion rights advocates.

Anti-abortion activists spent several years resurrecting the Comstock Act, arguing that a future Republican administration could use the 151-year-old law to block the shipment of all abortion-related drugs and materials to effectively ban abortions nationwide .

The Supreme Court may be about to hand them a legal road map.

Justices Samuel A. Alito Jr. and Clarence Thomas repeatedly invoked the Comstock Act during oral arguments Tuesday on the abortion drug mifepristone, pressing lawyers on whether the 1873 federal law should apply to the abortion drugs sent today under the mail. Alito rejected the Biden administration’s argument that the law was outdated — it hadn’t been enforced in nearly a century — with the conservative justice insisting that Food and Drug Administration officials should have considered the law when expanding access to mail-order mifepristone in 2021 .

“This is an important provision. This is not some vague subsection of a complex, vague law,” Alito said. “Everybody in the area knew about it.”

The Supreme Court is reviewing whether the FDA improperly approved and expanded access to mifepristone, and based on questions during Tuesday’s hearing, legal experts expect the court to rule to uphold the health agency’s authority. But some experts and Biden officials fear that Alito and Thomas plan to write a separate opinion focused solely on the Comstock Act, arguing that the law remains viable and provides legal cover for a future administration that wants to invoke it.

“When you hear the justices asking repetitive questions, that’s definitely something they’re interested in,” said University of Michigan law professor Leah Littman, adding that she’s preparing for either Alito or Thomas to write an opinion focused on Comstock. She criticized the two justices for advancing the theory that the Victorian-era law applies today, calling it “strange” to believe that the Comstock Act “suddenly allows the federal government to start imprisoning providers and distributors of medical abortion “.

“The law has never been understood by the Justice Department or the courts,” Litman said. “It has always been interpreted narrowly.”

Pressed by Alito and Thomas, lawyers for the FDA and mifepristone maker Danco Laboratories argued that the Comstock Act was not relevant when considering access to mifepristone.

“I don’t think the Comstock regulations fall within the purview of the FDA,” Solicitor General Elizabeth B. Prelogar said in response to questions from Alito.

But Erin Hawley, the attorney representing the Alliance for Hippocratic Medicine, the conservative medical group challenging the FDA’s handling of mifepristone, said the law’s text “is pretty clear.”

“We don’t think there’s a case in this court that gives the FDA the right to ignore another federal law,” Hawley said in response to questions from Thomas. “The Comstock Act says that drugs should not be sent through the mail … either by mail or by common carriers.”

Federal courts have shown a willingness to engage with this argument. U.S. District Judge Matthew Kaczmarik, who ruled in April to suspend the FDA’s approval of mifepristone, cited the Comstock Act in part, saying the meaning of the law was clear from the text. The U.S. Court of Appeals for the 5th Circuit did not address Comstock when it ruled to limit access to mifepristone in August.

The White House declined to comment on questions from Alito and Thomas about Comstock, citing the ongoing mifepristone litigation. The Biden administration has strongly resisted efforts to interpret Comstock as a ban on shipping abortion drugs.

Former President and current GOP candidate Donald Trump has not commented on the Comstock Act. But some of his conservative supporters and members of the anti-abortion movement urged him to invoke the law if he were to return to the presidency.

“If a future president were to enforce these federal laws, then they could shut down every abortion facility in America,” Mark Lee Dixon, an anti-abortion activist, told The Washington Post in an interview in May. Dixon, along with former Texas Solicitor General Jonathan Mitchell, revived efforts to enforce the Comstock Act.

The law was named after Anthony Comstock, an opponent of the Crusaders who tried to impose his moral and legal rubric on the nation. The 19th-century measure banned the mailing of “indecent” material such as pornography and sex toys, but also included provisions restricting access to abortion and contraceptive drugs sent by mail.

More than 40 years after his eponymous law went into effect, Comstock said he was troubled that it was being used to interfere with doctors’ private practices. According to an interview published in the May 22, 1915 issue of Harper’s Weekly, Comstock said the law should target “only famous doctors who advertise or mail their nasty stuff. A respected doctor can tell his patient what is needed in his office, and the pharmacist can sell prescription drugs that he would not otherwise be allowed to sell.

Comstock added that some abortions are permissible. “A doctor is allowed to perform an abortion in cases where a woman is in danger,” he was quoted as saying.

After Tuesday’s arguments, Congressman Cory Bush (D-Mo.) called on Congress to repeal the law.

“The anti-abortion movement wants to weaponize the Comstock Act as a fast track to a national ban on medication abortion,” Bush wrote on X, formerly known as Twitter. “Not on our watch.”

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