This story by Jennifer Shutt appeared on Colorado Newsline on April 5, 2024. We are sharing it in two parts…
An anti-obscenity law enacted in 1873 that hasn’t been enforced in decades shot to the forefront of the nation’s abortion debate in the past week thanks to two U.S. Supreme Court justices, amid expectations a future Republican president would use the law to order a nationwide ban on medication abortion.
The Comstock Act, which prohibited the mailing of anatomy textbooks and boxing photographs as well as contraceptives, drew fresh attention after Justices Samuel Alito and Clarence Thomas, during March 26 oral arguments, seemed to suggest the law would block the mailing of mifepristone.
Legal experts and a medical historian interviewed by States Newsroom said enforcing the law would be possible since it’s still on the books. But one legal expert noted it may be challenging to prosecute only the sections on abortion while ignoring those that bar sending anything deemed to have an “indecent or immoral use.”
The law, they said, also stems from a time when medical understanding and terminology around pregnancy was vastly different than today, though that’s unlikely to deter those who see the Comstock Act as a path to curtailing or ending abortion access.
Trying to fend off any possibility, a few Democrats in Congress hope to repeal the statute ahead of another Republican presidency — a difficult task amid divided government.
Sarah Perry, senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies at the conservative-leaning Heritage Foundation, said a future Republican attorney general could prosecute any manufacturer that ships mifepristone through the U.S. Postal Service — or a private company contracting with USPS.
“The reason we don’t see more involvement with Comstock in federal litigation is simply because you have to have a Department of Justice with the political will to actually go out and to enforce it, and to charge people with those types of violations,” Perry said.
Mifepristone is one of two pharmaceuticals used in medication abortions, which are currently FDA-approved for use up to 10 weeks gestation. The two-drug regimen accounts for about 63% of abortions nationwide, according to a report from the Guttmacher Institute.
The pharmaceutical is at the center of a case before the U.S. Supreme Court. Months of litigation began when anti-abortion medical organizations filed a lawsuit in November 2022 asking the federal courts to either severely restrict or end access to the drug.
The Comstock Act bars more than just sending abortion pharmaceuticals and reigniting enforcement of its various provisions could be complicated, according to Mary Ziegler, Martin Luther King Jr. professor of law at UC Davis School of Law.
“If you look at the statute, very few words in it are about abortion. Almost all of it is about stuff having to do with sex,” Ziegler said. “So if you’re going to revive the Comstock Act, that’s part of the Pandora’s Box you’re opening.”
The first line of the law, for example, bans mailing “Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.”
One of the lines addressing abortion says the statute bans mailing “Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use.”
Ziegler said she wasn’t sure how a court today would interpret what would be “for any indecent or immoral use.”
The lawmakers in Congress who voted to approve the Comstock Act, which was enacted less than a decade after the end of the Civil War, weren’t especially concerned with “protecting fetal life or rights,” Ziegler said.
“It was really about sex, and abortion came into it the same way contraception did,” she said. “And the people who passed the law didn’t really distinguish the two.”
Anthony Comstock, who advocated for the law, used to call “people who sold contraceptives, abortionists, even though they didn’t perform abortions, because to him there really wasn’t much of a difference,” Ziegler said.
The law’s full title is “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.”
While the Biden administration has issued a legal opinion saying the Comstock Act doesn’t apply when the “sender lacks the intent that the recipient of the drugs will use them unlawfully,” a future GOP president and the legal teams within that administration could feel quite differently. Former President Donald Trump has clinched the Republican presidential nomination.
The Biden administration’s legal interpretation of the Comstock Act, Perry said, “doesn’t really pass the straight face test, particularly the plain reading of the text itself for which ‘intent’ does not appear.”
Perry and Thomas Jipping, a fellow Heritage Foundation senior legal fellow, wrote in a February 2023 report that the Biden Administration’s Office of Legal Counsel’s opinion “wants Americans to believe that a law enacted as part of the national pro-life legislative movement and championed by an aggressive and uncompromising anti-vice crusader is today, with no change in its language, entirely unenforceable for its intended purpose.”
“The OLC wants Americans to ignore what they can read for themselves, that the statute has clear and unqualified language, and that Congress repeatedly demonstrated its intention to keep it that way,” the two wrote. “The OLC wants Americans to believe that while enacting the Comstock Act required Congress to act, rendering it inert and unenforceable could be accomplished by Congress failing to act at all.”
A Republican-controlled Justice Department could bring charges against the manufacturers of mifepristone unless those companies used entirely private transportation companies, Perry said.
“If they were seeking a private driver to deliver or a private delivery service to deliver, that’s legally permissible, but they cannot use the U.S. Postal Service or any common carrier that contracts with the U.S. Postal Service,” Perry said.
Some legal experts or judges could interpret the law as having a wider reach, Ziegler said.
“The statute’s written to be really broad,” she said. “So it’s not obvious to me that if you used a private carrier that it would be exempted. Again, if you assume the interpretation of the law that they have, which I don’t, but if you do, I don’t think it makes a difference if you have a private carrier.”
In that case, the law could mean no medication abortion at all as well as enforcement of the Comstock Act’s other provisions, Ziegler said.
The law was used in federal prosecution as recently as 2002, but that was for “obscene or lewd materials,” not for the mailing of anything having to do with abortions, Perry said.
Enforcement of the abortion sections of the law wasn’t allowed after the Supreme Court ruled that abortion was a constitutional right in the 1973 Roe v. Wade case, but that all changed two years ago when the court overturned that opinion, Perry said.
“The law essentially laid dormant for many years because, of course, in 1971 the birth control prohibition was eliminated and then in 1973, we were given Roe,” Perry said. “So for all intents and purposes, the Supreme Court finding a right to abortion superseded what the Comstock Act actually said, because if there was an unfettered right to abortion, then there could not be congressional restriction on any tool, medication, or implement used to facilitate abortion,” said Perry.
The court’s ruling in Dobbs v. Jackson Women’s Health Organization could lead to “renewed interest” in enforcing the Comstock Act, including comments made just last week by the two Supreme Court justices, she said.