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A 150-Year-Old Law Could Ban Abortion Nationwide

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Judge Matthew Kacsmaryk’s blockbuster opinion last week ordered the suspension of the Food and Drug Administration’s 23-year-old approval of mifepristone, the first pill used in a medication abortion. In the text, the judge invoked a bizarre bit of legal reasoning: the Comstock Act, a law that Congress passed in 1873 to ban sending pornographic literature, contraceptives, and early abortion-inducing substances through the mail. The law has been criticized as overly broad, even unconstitutional, and archaic for much of its 150-year history. But on Thursday, the 5th Circuit Court of Appeals affirmed much of Kacsmaryk’s ruling, including his invocation of Comstock.

On Slate’s legal and courts podcast Amicus, host Dahlia Lithwick discussed the far-reaching implications of the Comstock Act’s dubious resurrection and rehabilitation by these conservative judges with Mary Ziegler, an expert on the law, history, and politics of reproductive health care and conservatism in the U.S. from 1945 to the present. Ziegler is a professor at the University of California–Davis School of Law, and the author of Roe: The History of a National Obsession. A transcript of their conversation below has been edited and condensed for clarity.

Dahlia Lithwick: I feel like you have been telling us loud and clear for some time: Uh, the Comstock Act will be the vehicle by which to do the thing the court didn’t do in Dobbs [and ban abortion nationwide]. And I wondered, because you’ve thought about this so deeply, if you can just give listeners who probably haven’t heard the words “Comstock Act” until last week a refresher on what it was and where it went, and how it has been revived like a phoenix to be the specter of doom.

Mary Ziegler: The Comstock Act was passed in 1873, and it was the culmination of this work done by a man named Anthony Comstock, who was a self-proclaimed anti-vice crusader. And I think his primary concern at the time was that he thought his counterparts, the other soldiers with whom he fought the Civil War, were just too obsessed with sex. And so he wanted to ban the mailing of almost anything that touched on sex. That started with what he saw as dirty books, which was an extremely broad category that included, you know, pornographic stuff like The Canterbury Tales, which some of you may have read in high school English. And it also included the mailing of contraceptives and abortion drugs or abortion devices.

Comstock was quite vigorous and happy in enforcing this law. He was allowed to carry a weapon. He would boast that he was responsible for the destruction of tons of books and the suicide of numbers of people who were prosecuted under the act. And over time, unsurprisingly, people began to question the legitimacy of the Comstock Act. By the early 20th century, courts began interpreting it more narrowly, essentially to say it should only apply to scenarios where the person doing the mailing was intentionally breaking the law rather than trying to achieve some sort of legitimate aim, like prescribing a drug for medical purposes.

So it began to be kind of archaic and unused even in the early 20th century. In the meantime, Congress—just to score points—in the 1950s actually expanded the language of the Comstock Act so that it would apply not only to drugs intended for abortion, but also to anything adapted for abortion, which if you pause for a minute, is extraordinarily broad.

But then again it seemed to kind of go out of use. Congress eventually removed the parts [of the law] that had to do with birth control. Roe v. Wade made it seem as if the Comstock Act was unconstitutional. And the anti-abortion movement for a time didn’t want to revive Comstock either, because they had been going out of their way, after the ’70s, to prove that they were not an anti-sex, anti-woman movement. They were rather, as they would’ve put it, a kind of human rights movement that was interested in protecting the unborn child, which meant they didn’t want anti-vice laws. So the revival of Comstock is a function of a couple different things.

Obviously the demise of Roe makes it possible to do this. The anti-abortion movement’s embrace of lots of other things that sound Comstock-esque—whether those are restrictions on speech about sexual orientation and gender identity, whether it’s a more overt opposition to contraception—all of that makes it seem less politically costly for them to embrace the Comstock Act.

And of course, I think mostly, the Comstock Act reappeared in anti-abortion strategy as a matter of necessity, because the movement has always wanted more than the reversal of Roe. The movement has always wanted, ideally, a national constitutional ban on abortion, either a constitutional amendment or a U.S. Supreme Court decision. We’re not gonna get a constitutional amendment for the obvious reasons that no one in the United States wants one, and we’re not likely to get a U.S. Supreme Court decision on the idea that abortion is unconstitutional anytime soon either. We know that the U.S. Supreme Court actually had an opportunity to take a case on fetal personhood out of Rhode Island and turned it down. And it seems equally unlikely that Congress is going to pass a nationwide ban on abortion from the moment of fertilization, when even House Republicans won’t say they’re for a 20-week ban.

So, you began to see anti-abortion lawyers [bringing Comstack back]. I think the architects of this strategy were familiar figures: Jonathan Mitchell and Mark Lee Dixon, who were the team behind Texas’ SB-8, the bounty law. They began suggesting that the anti-abortion movement didn’t need a new law, because they already had the Comstock Act. The Comstock Act, it turned out, they argued, actually banned all abortions, because, they suggested, that every single abortion in the United States, surgical or medical, requires something that comes in the mail: Abortion providers don’t create their own medical devices or surgical instruments. They don’t make their own drugs. They get them from medical device manufacturers and pharmaceutical distributors. So they began seeding local ordinances with mentions of the Comstock Act. They began promoting this argument to state legislators and conservative attorneys general.

And now you’ve seen it spread—in other conservative organizations, Christian right organizations, single-issue anti-abortion organizations. So really kind of regardless of what happens with the mifepristone suit, we’re going to see more lawsuits about this, some of which have already been filed, others of which are going to be filed soon.

Just to be super clear, the prospect of going through people’s mail, of going after protected speech, of the door opening to birth control being regulated by Comstock—I think what you’re saying is so interesting. They can’t get it done constitutionally, probably can’t get it from the court. They’re going to do it by a statute than that is worse on its face than many of those things, and going to do that in the face of everybody hating on it. Because it works.

Basically. Yeah. We’ve seen signs. This isn’t surprising, right? Because if you ask people in the anti-abortion movement, they’ll essentially say, “what we’re doing here is more important than democracy.” Like, this matters more than the will of the people. But embracing Comstock says that with a bullet. The anti-abortion movement has never championed a national statute with language broad as Comstock. They haven’t.

There would be no exceptions for this. There’s no life-of-the-pregnant-person exception. If you stop and think about what “any drug or device adapted for abortion” means, anyone who’s been pregnant knows that there are bazillions of drugs, to use the technical term, that are counterindicated for pregnancy. So what does Comstock mean for those? What does it mean for drugs like methotrexate? What does it mean for emergency contraception? If someone in a Republican Justice Department interprets emergency contraceptives as an abortifacient. If this is how courts go with this, we have absolutely no idea how broadly it would apply, because the language is, to me, kind of remarkably vague and sweeping.

And so, [Comstock] is simply the only way they see to get to a nationwide abortion ban. And the fact that everyone would hate it and no one would know what it means, and that in any kind of normal world, it would be unconstitutional to revive a law, a criminal law like this that no one has taken seriously in at least half a century—None of that seems to matter. Which leads to the logical conclusion that sooner or later—and I think maybe it will be before we get some kind of clarity from the Supreme Court, maybe it will be after—we’re going to have to see a bill demanding repeal of Comstock. Because the one piece of good news here is that Comstock is not, to your point, a constitutional matter where the Supreme Court has the final word. It’s a statute that was passed by Congress. So in theory, a future Congress can make it go away.

Source: Slate

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