The Comstock Act Is a Backdoor Method to a Nationwide Abortion Ban—And Justices Alito and Thomas Are
The lengthy dormant Comstock Act is shifting out from the shadows into the sunshine—in no small half because of the mixed efforts of anti-abortion activists Mark Lee Dickson and Jonathan Mitchell, Justices Alito and Thomas, and Venture 2025.
A basic consensus appears to have emerged after final week’s oral arguments in FDA v. Alliance for Hippocratic Medication that the Supreme Courtroom is prone to rule that the anti-abortion physicians and their umbrella group, the Alliance for Hippocratic Medication, lack enough authorized grounds to problem the FDA’s 2016 and 2021 loosening of restrictions on the abortion drug mifepristone. Authorized standing to convey go well with in federal court docket requires (amongst different issues) that the occasion bringing go well with has suffered an precise or threatened damage.
Opposition to abortion doesn’t confer standing, regardless of how passionate. Neither is it conferred by “a protracted chain of distant contingencies,” as Solicitor Common Prelogar argued on behalf of the FDA. Notably, these are the dual pillars supporting the plaintiffs’ idea of standing.
As Adam Unikowsky places it, it depends upon the attenuated risk that “some girl … would possibly take mifepristone and expertise an especially uncommon complication. … She would possibly randomly wander into one of many emergency rooms the place the plaintiff-doctors work … leaving [them] with no alternative however to deal with the girl [which] will violate the medical doctors’ conscience, stress the medical doctors out or take them away from one thing else they’d somewhat be doing.”
Dismissing the lawsuit for a scarcity of standing would give the Courtroom an off-ramp, with out showing to retreat from the fierce anti-abortion stance that it staked out in Dobbs. It could additionally forestall creating “chaos within the processes for drug growth, approval and modification,” as argued in an amicus transient filed by the pharmaceutical business, which might create “a shadow of lasting uncertainty over each FDA approval and invite spurious lawsuits difficult FDA’s settled security and effectiveness determinations.”
Whereas dismissal based mostly on a scarcity of standing can be a welcome consequence, it isn’t a assure given the Courtroom’s anti-abortion supermajority. However even when this happens, the obvious zest manifested by Justices Samuel Alito and Clarence Thomas in direction of the Comstock Act from 1873 brings a lurking hazard totally out into the open.
By means of transient background, this Victorian-era purity regulation was a proud accomplishment of anti-vice crusader Anthony Comstock who “’believed that something remotely touching upon intercourse was … obscene.” In search of to cleanse the nation of sexual sin, he efficiently lobbied Congress to criminalize the sending of obscene supplies by means of mail, which was outlined to incorporate contraception and “each article or factor designed, tailored or meant for producing abortion.” The Comstock Act was subsequently amended to additional criminalize the conveyance of “obscene” materials, by the use of widespread carriers and interactive laptop companies.
I actually hoped nobody would say something concerning the Comstock legal guidelines till Dobbs got here out.
Jonathan Mitchell
In the course of the first half of the twentieth century, a sequence of court docket selections narrowed the scope of the Comstock Act. Consequently, based on a 2022 memorandum issued by the Workplace of Authorized Counsel for the Division of Justice, it was now not understood to “prohibit the conveyance of articles meant for stopping conception or producing an abortion” except the sender meant for them for use unlawfully.
Including to the narrowing of the regulation, after the Courtroom’s 1965 determination in Griswold v. Connecticut recognizing the constitutional proper of married {couples} to make use of contraception, Congress eliminated the contraceptive language from the Comstock Act and the abortion provisions had been thought-about a useless letter of the regulation for the reason that Courtroom’s 1973 determination in Roe v. Wade. That’s, till Dobbs.
Nonetheless, bother was really already brewing even earlier than the Courtroom overturned Roe. Lawyer Jonathan Mitchell—the authorized thoughts behind the “bounty hunter” method to the enforcement of anti-abortion legal guidelines and extra just lately counsel for Donald Trump earlier than the Supreme Courtroom within the Colorado poll problem—informed The Nation that he “knew about Comstock earlier than Dobbs, however I wished to say nothing about it. … I actually hoped nobody would say something concerning the Comstock legal guidelines till Dobbs got here out.”
Presumably, Mitchell hoped to maintain Comstock on the down-low till after the choice in Dobbs as a result of whereas his fellow vacationers within the anti-abortion motion had been urgent the Courtroom to overturn Roe and return authorized authority over abortion to the states, he was hitching his dream of a nationwide abortion ban to a federal statute. Quickly after Dobbs, Mitchell helped hatch a plan with “God-fearing, Texas born and raised, pro-life activist” Mark Lee Dickson—director of Proper to Life East Texas and founding father of Sanctuary Cities for the Unborn—as to how the Comstock Act could possibly be harnessed as a backdoor method to the effectuation of a nationwide ban.
In 2019, Dickson launched his Texas-based sanctuary metropolis motion aimed toward outlawing abortion “one metropolis at a time” by enacting native ordinances expressly prohibiting abortion inside municipal boundaries. As tensions between abortion-restrictive and abortion-protective states heated post-Dobbs, Dickson feared that suppliers from Texas would relocate into southeastern New Mexico (a notably conservative a part of the state) with a view to ‘lure’ abortion-seekers throughout the border between the 2 states. In response to this risk, he sought to likewise export his sanctuary metropolis motion throughout the two-state border.
Dickson, nonetheless, was involved that this abortion-protective state would thwart this plan by passing a regulation prohibiting municipalities from enacting native abortion bans. And that is precisely what occurred: Within the spring of 2023, the New Mexico legislature permitted the Reproductive and Gender-Affirming Well being Care Freedom Act, prohibiting “public our bodies, together with native municipalities, from denying, limiting or discriminating towards a person’s proper to make use of or refuse reproductive well being care or well being care associated to gender.”
However Dickson, along with Mitchell, devised an end-run round this prohibition: Relatively than importing a Texas-style municipal ordinance expressly banning abortion into New Mexico, they’d as a substitute tether the ordinance on to the Comstock Act, thereby making a “de facto” (in reality) abortion ban. As Dickson explains, by “requiring compliance with federal legal guidelines on abortion prohibiting the mailing or receiving of any abortion-inducing medicine or abortion-related paraphernalia, the ordinances make it inconceivable for any abortion facility to perform legally—even when they had been to get their tools or prescription drugs from elsewhere throughout the state.”
Because the duo argue, we do “not want a ‘new’ federal abortion ban on the books as a result of the Comstock Act is a ‘de facto’ abortion ban that would finish abortion in each single state in America.” Central to this imaginative and prescient is that given the supremacy of federal over state and municipal regulation, not even the bluest of states would be capable of evade the attain of Comstock’s ban on the conveyance of any “article or factor designed, tailored or meant for producing abortion.” Based mostly on the questions they posed at oral argument, it seems that Justices Alito and Thomas are followers, not less than so far as stopping entry to mifepristone is anxious.
In questioning Solicitor Common Prelogar, Alito pressed that in loosening the restrictions on mifepristone, the FDA ought to have “not less than thought-about” the applicability of the Comstock Act—which he refers to by statute quantity, somewhat than by identify—on condition that the prison prohibition on the conveyance of articles used for abortion “is a outstanding provision. It’s not some obscure subsection of an advanced obscure regulation. They knew about it. Everyone on this area knew about it.”
The Comstock Act is a ‘de facto’ abortion ban that will finish abortion in each single state in America.
Mark Lee Dickson
I suppose the anti-conveyancing provision can arguably be characterised as “outstanding,” within the context of the handful of localities in Southeastern New Mexico (and probably in Danville, Unwell., which enacted a Comstock ordinance in Might of 2023, as nicely) and Venture 2025, the right-wing coverage agenda for the subsequent administration that requires the enforcement of Comstock towards “suppliers and distributors of abortion.”
However extra broadly, till very just lately, it has been “a little-known a part of an outdated federal regulation,” which has not been enforced since 1936.
Furthermore, as Prelogar defined, the FDA is barely empowered to contemplate the “security and efficacy” of restrictions on medicine. Due to this fact, consideration of the Comstock Act when reviewing entry restrictions would have been exterior the company’s purview.
Alito was tag-teamed by Thomas, who gave Erin Hawley, an legal professional from the Alliance Defending Freedom representing the anti-abortion docs and their consultant affiliation, an opportunity to elucidate the significance of Comstock to this case. Expectedly, she defined, “We don’t suppose that there’s any case of this Courtroom that empowers FDA to disregard different federal regulation. With respect to the Comstock Act, [it] says that medicine shouldn’t be mailed … both by means of the mail or by means of widespread carriers.”
Even when the Courtroom dismisses this lawsuit as a result of a scarcity of standing, it’s clearly far too early to interrupt out the champagne. As a latest concern transient from Governing for Influence stresses, though the 2022 OLC memo signifies that “below the present administration, the Comstock Act will stay a useless letter,” the memo isn’t legally binding on the subsequent administration, which stays free to reject, revoke or ignore it.
Put up-Dobbs, the lengthy dormant Comstock Act is shifting out from the shadows into the sunshine—in no small half because of the mixed efforts of Dickson, Mitchell, Alito, Thomas and Venture 2025. It’s the anti-abortion motion’s greatest hope for the implementation of a nationwide abortion ban as congressional motion wouldn’t be not required seeing because the regulation remains to be on the books. Not that we want any reminders, however that is but one more reason why the upcoming presidential election is so vital.
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