How the Comstock Act Law Is Key to the Abortion Fight

How the Comstock Act Law Is Key to the Abortion Fight  at george magazine

The Comstock Act, named for a public-morals crusader on a mission to “sanitize” the U.S. in the 1870s, makes a comeback in the abortion-pill battle.

Anthony Comstock, a 19th-century crusader against sexual liberty, was mocked as a prude in his own time, but wielded real power. He persuaded Congress in 1873 to pass the Comstock Act, written by and named for him, making it a federal crime to send or deliver “obscene, lewd or lascivious” material through the mail or by other carriers, specifically including items used for abortion or birth control.

By the 1960s, the Comstock Act had fallen out of use — narrowed by court rulings, partly gutted by congressional repeals — and it was made an unconstitutional relic by the Supreme Court’s decision in 1973 in Roe v. Wade, recognizing a national right to abortion. But it stayed on the books.

Now, Comstock is back, once more being wielded as a weapon by social conservatives. Their arguments use the language of the act to target the mailing of abortion pills, and they are pushing judges and the Biden administration to reopen seemingly long-settled questions.

The resurrection of the Comstock Act is part of a larger legal effort by abortion opponents to force abortion pills off the market. The central battle currently is a lawsuit, brought by a consortium of anti-abortion organizations and doctors in Texas, which has already made a brief stop at the Supreme Court and is now scheduled for argument on Wednesday before a federal appeals court.

By the 1960s, the Comstock Act had come to be seen as obsolete. Pro-birth-control demonstrators stood outside St. Patrick’s Cathedral in Manhattan in 1966.Marivin Sussman/Newsday RM, via Getty Images
Bettmann Collection, via Getty Images

The plaintiffs’ primary argument is that the courts should force the Food and Drug Administration to revoke its approval of mifepristone, the first pill in the two-drug regimen for medication abortion. At the same time, another potentially consequential part of the suit challenges an F.D.A. decision in 2021 allowing patients to receive the prescribed pills by mail.

The plaintiffs in the Texas suit argue that the Comstock Act “explicitly forbids” mailing the drugs to any state, whether abortion is legal there or not.

In defense of the agency’s actions, which were based on studies showing that the medication could be safely dispensed without an in-person medical visit, the Biden administration argues that Congress made the agency responsible for assessing a drug’s safety and effectiveness, not whether other laws might affect its use.

In the first half of the 20th century, Congress, the courts and the Postal Service settled on a narrow interpretation of the Comstock Act, saying that it applied only if the sender intended for the recipient of the materials to “use them unlawfully,” according to an opinion by the Justice Department’s Office of Legal Counsel, which sets legal rules for the federal government.

The office’s opinion relies on several decades-old appellate court rulings limiting the act’s reach to materials that were being used for illegal birth control or abortions.

The postal service accepted this interpretation and told Congress about it. And the Justice Department opinion argues that Congress ratified that narrow interpretation when it subsequently amended the Comstock Act several times.

The opinion cites Supreme Court rulings on how statutes should be interpreted, and a book on legal texts that was co-written by the conservative Justice Antonin Scalia.

In a letter to Attorney General Merrick Garland in January, however, more than 40 Republican members of the House and Senate called for the opinion to be rescinded, saying it “twisted the plain meaning of the law in an effort to promote the taking of unborn life.”

A birth control clinic opened in New York in 1916 by the prominent activist Margaret Sanger, right, was closed nine days later when Ms. Sanger was jailed for violating the Comstock Act.Bain News Service/PhotoQuest, via Getty Images

Courts have split recently over how to read the act today. A federal judge in West Virginia adopted the Biden administration’s interpretation in a ruling on a motion in early May. In a preliminary ruling in the Texas case in April, though, a panel of appellate judges said that the act appeared to weigh in the plaintiffs’ favor by, among other things, “introducing uncertainty” into the analysis about the legality of shipping pills.

Some legal experts who support abortion rights are urging Congress to repeal the Comstock Act. They think the law is an unenforceable dead letter, but worry that conservative judges won’t see it that way.

“It’s worth getting rid of the law, because judges can misinterpret it,” said Priscilla Smith, director of the Program for the Study of Reproductive Justice at Yale Law School. “Even if they’re incorrect, if they say Comstock means you can’t send abortion pills through the mail, that’s devastating for access.”

Others say that a future Republican-led Justice Department might reverse the department’s current position and open the door for federal prosecutions of people who mail abortion pills, or anything else could be used for an abortion, like surgical instruments.

“That’s the legal risk here, even if all the current efforts to weaponize the law are a real stretch,” said David S. Cohen, a law professor at Drexel University.

Major abortion-rights groups have stopped short of calling for repealing the act. One concern they have is that a push to repeal it might undermine the argument in court that the law is already defunct.

Planned Parenthood, NARAL Pro-Choice America, and other organizations have instead endorsed a House resolution, introduced by three Democrats, stating that access to medication abortion is “essential” and “does not violate Federal law,” based on the Justice Department opinion. “Congress has already made clear that Comstock does not apply to lawful abortions,” Planned Parenthood said in a statement.

Supporters of abortion rights protested outside the federal building and courthouse in Amarillo, Texas, where a lawsuit against abortion pills was argued in February.Meridith Kohut for The New York Times

Anti-abortion groups support reviving the Comstock Act.

“The passage of time doesn’t change the impact of the law,” said Kristan Hawkins, president of Students for Life.

The group emphasizes on its website that the act provides for “criminal penalties” up to five years in prison for a first offense. “The law still means what it says — abortion-causing items are not to be mailed,” the group’s website says. “Congress has had the option to change that in the past. It didn’t.”

In the 1870s, Mr. Comstock himself became its chief enforcer, designated by Congress as a special agent of the Post Office to make arrests for sending anything from art photographs and sex-education pamphlets to birth control methods. At the end of his career, Mr. Comstock said he had helped convict enough people to fill a 61-coach passenger train.

The last time the act was amended, in 1996, Patricia Schroeder, then a Democratic representative from Colorado, fought to remove the provision about mailing abortion materials, but the effort fell short. “Comstockery has been given a new lease on life by this Congress,” Ms. Schroeder, who died in March, mourned at the time in a floor speech.

Barney Frank, a Massachusetts Democrat, was involved in the 1996 effort. The repeal failed, he said in a recent interview, because at the time, “abortion was overwhelmingly unpopular among Republicans and also seen as a wedge issue that could be used against Democrats.”

Newt Gingrich, the Republican Speaker of the House in 1996, said that then and now, “both parties face the challenge of avoiding being the extremist” on abortion. He distinguished between narrowing the Comstock Act and repealing it entirely, saying repeal “would be a different kind of fight.”

But Mr. Frank thinks the politics have changed and the Comstock Act itself is outside the mainstream. “Then abortion was seen as a terrible issue for the left,” he said of the 1990s. “But now the situation is reversed. Let’s see if the Republicans really want to stick with this kind of extreme old law.”

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