This story by Jennifer Shutt appeared on Colorado Newsline on April 5, 2024. We are sharing it in two parts…
Read Part One
The Comstock Act, an anti-obscenity law enacted in 1873 and which prohibited the mailing of anatomy textbooks and boxing photographs as well as contraceptives, drew fresh attention after Supreme Court Justices Samuel Alito and Clarence Thomas, during March 26 oral arguments, seemed to suggest the law would block the mailing of mifepristone.
Thomas and Alito brought up the Comstock Act during a case that will determine whether access to mifepristone stays the way it is now, or reverts to what was in place before 2016.
Thomas asked the attorney representing Danco Laboratories LLC, manufacturer of the brand name of mifepristone called Mifeprex, if the Comstock Act applied to the company.
“The government, the solicitor general points out, would not be susceptible to a Comstock Act problem,” Thomas said. “But in your case, you would be, so how do you respond to an argument that mailing your product and advertising it, would violate the Comstock Act?”
Thomas said that his “problem” with aspects of the case was that Danco Laboratories is “private, and the statute doesn’t have the sort of safe harbor that you’re suggesting.”
“It is fairly broad and it specifically covers drugs such as yours,” Thomas said.
Danco lawyer Jessica Ellsworth responded that she disagreed that was “the correct interpretation of the statute.”
“We think that in order to address the correct interpretation, there would need to be a situation in which that issue was actually teed up,” Ellsworth said. “I don’t believe that this case presents an opportunity for this court to opine on the reach of the statute.”
Alito appeared to argue that the U.S. Food and Drug Administration should have considered the Comstock Act before relaxing previous restrictions on use, allowing mifepristone to be prescribed via telehealth and sent to patients through the mail.
“It didn’t say anything about it. And this is a prominent provision,” Alito said. “It’s not some obscure subsection of a complicated obscure law. They knew about it. Everybody in this field knew about it.”
Following the comments by the two justices, U.S. Rep. Cori Bush, D-Mo., immediately called on Congress to repeal the law, a scenario that’s unlikely to happen given that Republicans control the U.S. House and Democrats the Senate.
“Enacted in 1873, it is a zombie statute, a dead law that the far-right is trying to reanimate,” Bush wrote on social media. “The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban. Not on our watch.”
Minnesota Democratic Sen. Tina Smith wrote in an op-ed published by The New York Times on April 2 that she would work with her colleagues to repeal the law, saying that neither the Supreme Court nor another Trump administration should be allowed to rely on it to ban access to medication abortion.
“Very few Republicans will admit to wanting to see a total, no-exceptions ban on abortion in all 50 states, but the Comstock Act could allow them to achieve that in effect, if not in so many words,” Smith wrote. “Americans deserve better. The Constitution demands better. And common sense dictates that we stop this outrageous backdoor ploy to eliminate abortion access in its tracks.”
Ziegler said that “the Comstock Act passed at a time when the meaning of obscene was up for grabs” and that its namesake, Anthony Comstock, “was really anxious about people’s exposure to what he saw as pornography.”
Some of the prohibited items under the anti-obscenity law were things people today would still think of as pornography, but Comstock also didn’t approve of nudity in medical textbooks or art, literature with “risque humor,” or newspaper articles about people who died as the result of illegal abortions.
“He thought all of that was encouraging people to have sex they shouldn’t be having, either by being arousing or in the case of abortion or contraception, convincing them that they could have sex without pregnancy,” Ziegler said.
At various points in the law’s history, Ziegler said, it was used to target people discussing LGBTQ rights and against opponents of the law in a way that basically silenced political speech.
Even though it hasn’t been used in quite some time, Ziegler said, “it’s a very real possibility” a future Republican DOJ could seek to enforce the law with respect to abortion access.
“The only caveat, of course, is if that happened, the person being prosecuted would be right back in federal court saying, ‘Number one, this is not what the Comstock Act means and number two, the Comstock Act is unconstitutional,’” Ziegler said. “So the U.S. Supreme Court would eventually have to settle those questions.”
One question for the justices will have to be what the word abortion meant in the late 19th century.
“If you look at what the law in general said at the time, procuring abortion was only a problem if it was done intentionally, and if it was done with basically criminal intent, which excluded cases where someone’s life was at risk or health was at risk,” Ziegler said.
Mary Fissell, inaugural J. Mario Molina professor in the history of medicine at Johns Hopkins University and vice president of the American Association for the History of Medicine, said during the 19th century around the time the law was written the terms abortion and miscarriage were often used interchangeably and typically meant the same thing.
“Both of those terms describe a pregnancy that ended sooner than it should have done and did not result in what we would call a live birth,” Fissell said.
People and organizations that wanted to outlaw pregnancy termination often used the term “feticide,” as in fetal homicide, to advocate for laws banning or significantly restricting the practice, Fissell said.
“Doctors start calling it criminal abortion, to distinguish it from everyday abortion, which is just fetal loss,” she said. “And so it’s over time that these terms come to mean, sort of separate things. At that point, they are very much just used interchangeably.”
The way women and most doctors understood pregnancy more than 150 years ago was before and after “quickening,” the first time a woman felt the fetus move, which is typically sometime in the middle of the second trimester, Fissell said.
“Before quickening, ending a pregnancy was not a big deal. It was not even fully always understood as ending a pregnancy,” Fissell said. “I think sometimes that’s what a woman knew she was doing. Other times she was getting back a lost menstrual cycle.”
In the late 19th century many physicians practiced what’s now referred to as humoral medicine, in which they believed the body contained four humors or fluids that needed to be kept in balance in order for a person to stay healthy.
They believed the body contained black bile, yellow bile, blood and phlegm and that those four substances corresponded to being either hot or cold as well as wet or dry.
“Women’s bodies were cooler and wetter than men’s,” Fissell said of medical beliefs around that time. “That’s good because, they thought of it as analogous to agriculture, and a seed was planted in the womb. And we all know what happens if you plant a seed somewhere that’s too hot and dry. It doesn’t go well.”
“So it was good that women were cooler and wetter, but it meant they didn’t fully process their food in the same way,” she added, again referring to beliefs at the time. “And the excess, the leftover, had to be gotten rid of from the body and that was what menstruation was.”
Doctors and others at the time often sold products that were designed to help women get a regular period, including herbal combinations. But there are significant differences between how that was thought of around 1873 and now, Fissell said.
“From a long time before that, there had been a blurring between what we call contraception and abortion,” Fissell said. “It doesn’t make sense to us, but in their worldview, they were more connected in part because the same kind of plant that you might take to get your cycle back, you could also be ending a pregnancy.”
“So, you can imagine some of those same preparations that women were advised to take every month, and you won’t get pregnant,” she added. “We would biochemically analyze it very differently than the way they were understanding it.”
Fissell said that around the time the Comstock Act was written, women and doctors — not typically male lawmakers — held the knowledge about menstrual cycles and pregnancy. “I think the extent of ignorance cannot be overestimated.”