What Does 1870s Comstock Act Have to Do With Abortion Pills?

What Does 1870s Comstock Act Have to Do With Abortion Pills?

The Comstock Act, which has been dormant for half a century, is being revived by groups seeking to block the mailing of mifepristone, the pill used in more than half of U.S. abortions. At the center of a new court ruling that threatens access to the leading abortion drug in the U.S.

The Comstock Act of 1873 was a federal law in the United States that made it illegal to send “obscene, lewd, or lascivious” materials through the mail, including contraceptive devices and information about birth control. The law was named after Anthony Comstock, a social reformer who lobbied for its passage.

The Comstock Act was used to restrict access to information and materials related to contraception and abortion. This meant that it was illegal to distribute or even possess information about abortion, contraception, or sexually transmitted infections. The law also made it illegal to sell or distribute any drugs or devices intended to induce abortion, including what we now refer to as abortion pills.

The Comstock Act was a significant obstacle to the availability of safe and legal abortion in the United States until it was largely overturned by the Supreme Court’s decision in Roe v. Wade in 1973. However, even today, access to abortion pills and other forms of reproductive healthcare remains restricted in many parts of the United States, often due to political opposition and legal barriers.

The Comstock Act, which had been dormant for half a century, has been revived by anti-abortion groups and conservative states in an effort to prevent the mailing of mifepristone, the pill that is used in more than half of all abortions in the United States. It is at the center of a new court ruling that threatens access to the leading abortion drug in the United States. WASHINGTON (AP) —

A federal judge in Texas ruled on Friday in favor of Christian conservatives, saying that the Comstock Act forbids mailing the long-used drug.

What Does 1870s Comstock Act Have to Do With Abortion Pills?

U.S. District Judge Matthew J. Kacsmaryk said in a big decision that the Food and Drug Administration’s decision to approve mifepristone more than two decades ago was against federal law. The Trump appointee claimed that the FDA ignored “legitimate safety concerns” regarding the pill, which has been available since 2000, despite the overwhelming evidence to the contrary.

Within hours of the decision, notices of appeal were filed by the Biden administration and the primary manufacturer of mifepristone.

The order from a judge in Washington state, which stated that the FDA must maintain access to the drug in Democratic-led states that filed their own lawsuit, came almost simultaneously with the Texas ruling. It is anticipated that the conflicting opinions will quickly send the case to the Supreme Court.

Kacsmaryk, a former attorney for the conservative First Liberty Institute, referred to doctors who prescribe mifepristone as “abortionists,” fetuses as “unborn humans,” and medication abortions as “chemical” abortions throughout his opinion.

If Kacsmaryk’s 67-page decision is upheld, it would also overturn recent FDA changes that were meant to make it easier for people to get mifepristone, especially one that allowed the drug to be sent by mail in 2021


COMSTOCK ACT Initially passed in 1873 and named for an enemy of bad habit crusader, the Comstock Act was planned to disallow the mailing of contraceptives, “scurrilous” works and any “instrument, substance, medication, medication, or thing” that could be utilized in a fetus removal.

Congress and federal courts have repeatedly limited the law’s scope, eliminating the mention of contraceptives in the 1970s. Experts in law claim that the federal government has not enforced the law since the 1930s.

However, Kacsmaryk concurred with the plaintiffs that mailing mifepristone is against the law when it is literally interpreted.

He came to the conclusion that the FDA’s decision to permit the “dispensing of chemical abortion drugs through mail violates unambiguous federal criminal law.”

Why is the COMSTOCK ACT currently in effect?

In the 50 years following Roe v. Wade, which established a federal right to abortion, the law was essentially dormant. What’s more, until the FDA released its prerequisites on mifepristone in 2021, there was no genuine method for empowering early termination through the mail.

Why is the COMSTOCK ACT currently in effect?
A pack of Mifeprex pills, used to terminate early pregnancies, is displayed in this picture illustration taken May 11, 2022. REUTERS/Caitlin Ochs/Illustration

However, according to Rachel Rebouché of the law school at Temple University, anti-abortion organizations have seized on Comstock in an effort to halt the supply of abortion drugs, encouraged by the Supreme Court’s decision to overturn Roe v. Wade.

Rebouché stated, “The fact that pills can be mailed is an existential crisis for the anti-abortion movement because it is hard to police, hard to track, and hard to enforce.” If the courts are willing to give Comstock new life, it has the potential to stop all medication abortions in the country.

Comstock has additionally been refered to by conservative state authorities trying to prevent public drug store chains from delivery early termination pills to their states.

CVS and Walgreens were warned in February by attorneys general in 20 conservative-leaning states that selling abortion pills via mail in their states could result in legal action. A large portion of those states have regulations confining early termination extensively or the pills explicitly, yet the lawyers general said mail-request mifepristone likewise crosses paths with the Comstock Act.

In the past, how have courts dealt with the Comstock Act?

Beginning in the 1930s, federal courts issued rulings that significantly limited the scope of the law’s application. Peruse in a real sense, the law could be deciphered to ban practically any clinical thing that could be utilized in an early termination.

Rebouché stated, “The interpretation being advanced would apply to all kinds of articles, such as surgical gloves, which are just basic health care equipment.”

A significant ruling from 1936 came to the conclusion that the law could only apply if the sender of a product or drug specifically intended for it to be used illegally for abortion.

In December, the Biden organization’s Equity Division endeavored to reinforce that translation, giving an assessment that Comstock couldn’t be utilized to ban the mailing of fetus removal pills due to their numerous lawful purposes, including during unnatural birth cycles and under early termination boycott exemptions.

Again, Kacsmaryk disagreed with that viewpoint and stated that the law “plainly does not require intent on the part of the seller.”


In the event that the Supreme Court decides to hear Comstock, the decision could have significant repercussions for American women, abortion providers, and those who oppose them.

Although Kacsmaryk’s order only covers mifepristone, the same strategy could potentially be applied to other medications.

Misoprostol, a second medication, is currently taken with mifepristone. Early termination facilities have said that assuming mifepristone were pulled from the market, they would change to utilizing just the subsequent medication, which is likewise used to treat other ailments.

Yet, whether Comstock could be utilized to likewise abridge shipments of misoprostol isn’t clear, since it is generally endorsed for stomach ulcers and different purposes.

What would happen if the Supreme Court upholds the pill ruling for abortion?

Experts warn that additional legal battles may ensue even if the Supreme Court upholds the Texas decision and prohibits the sale of mifepristone.

Public hearings and internal FDA reviews are the FDA’s own procedures for revoking drug approvals. The procedure might take a few months or years. Experts say that mifepristone manufacturer Danco Laboratories, which is a party to the case, could sue for “due process” claims if those steps are skipped.

Due to the fact that there is practically no legal precedent for a judge to overrule the FDA’s medical determinations, the FDA is also under pressure to basically ignore a negative court decision.

In a statement released on Friday, Democratic Senator Ron Wyden of Oregon stated, “There is no way this decision has a basis in law.” The FDA, specialists, and drug stores can and should approach their positions like nothing has changed.”

Legal experts say that the FDA has always had a lot of leeway in how it uses its power. For instance, the agency allows a number of untested supplements and remedies to remain on the market because they are essentially safe and removing them would use up the limited resources the agency has.

Considering that mifepristone stays protected and viable for finishing pregnancy, a few specialists say the organization ought to just permit the pill to stay available as an unapproved drug.

“Regardless of whether a court needs to arrange that the FDA follows through with something, the organization actually has caution by they way it does that thing,” Rebouché said.

On Twitter, you can follow Matthew Perrone as: @AP_FDAwriter

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