After Texas Ruling on Abortion Medication, Get Ready to Hear More About the Comstock ActRoundup
tags: abortion, contraception, Anthony Comstock
Mary Ziegler is the Martin Luther King Professor of Law at UC Davis. She is the author of Roe: The History of a National Obsession and Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.
The chaos unleashed by the U.S. Supreme Court’s reversal of Roe v. Wade was underscored on Friday when federal judges released dueling opinions on mifepristone, a pill used in more than half of abortions in the United States. In a suit by 17 progressive states and the District of Columbia, Judge Thomas O. Rice of the Eastern District of Washington State ordered the FDA to preserve access to mifepristone. In a competing ruling from Texas, Judge Matthew J. Kacsmaryk held that the FDA lacked the authority to approve mifepristone in the first place, more than 20 years ago. Kacsmaryk’s ruling, which will go into effect after seven days pending an appeal, marks the first time that a court has suspended approval of an FDA-approved medication that has been on the market for decades.
As the next chapter of the abortion wars has begun, attention has centered on abortion pills. Simply because they’re used in a majority of abortion procedures, they have become a new fixation for the anti-abortion-rights movement—which has championed drug-trafficking laws, pill-specific bans, and lawsuits in an attempt to block the use of this medication. The clashing federal-court decisions have teed up another ruling from the Supreme Court’s conservative supermajority—likely sooner rather than later.
Kacsmaryk’s unprecedented ruling, however, is not just a bid to block access to abortion pills. It is an open invitation to anti-abortion-rights groups to use the Comstock Act—a law passed 150 years ago and rarely enforced in the past century—to seek a nationwide federal ban on all abortions.
A closer look at the Texas judge’s decision suggests that the anti-abortion-rights movement’s attack on abortion pills is merely a staging post in that strategic effort. Although the ruling raises complex questions about a court’s authority to withdraw approval of a drug and the FDA’s options in responding, and could also have effects on states that protect abortion, these were not its most important implication.
That came in an argument supplied by the Alliance Defending Freedom, the conservative Christian group that led the litigation in the Texas case, in its effort to undermine access to mifepristone. Taking his cue from that argument, Kacsmaryk spotlighted the federal Comstock Act of 1873, an anti-vice law that prohibited mailing “every article or thing designed, adapted, or intended for producing abortion,” as well as anything “advertised or described in a manner calculated to lead another to use or apply it for producing abortion.”
The FDA has followed a consensus interpretation of the Comstock Act that has not faced serious challenge since the 1920s, which allows the mailing of abortion drugs when the seller does not intend them to be used unlawfully. Kacsmaryk dismissed this argument, concluding instead that the “plain text of the Comstock Act” controlled the result of the case—and mifepristone, he reasoned, was clearly an abortion drug that could not be mailed.
No abortion method exists in the United States that does not use something “designed, adapted, or intended for abortion” and sent through the mail or via another carrier. Abortion clinics do not make their own drugs or devices; they order these items from pharmaceutical-distribution companies and medical-equipment suppliers. Taken to its logical conclusion, Kacsmaryk’s ruling means that all abortions already violate criminal law.