Democrat Bush calls to repeal ‘zombie statute’ raised in abortion pill case

March 26, 2024

Democratic Rep. Cori Bush (Mo.) called for the Comstock Act to be repealed following the Supreme Court’s oral arguments over mifepristone Tuesday, calling the 1873 bill a “zombie statute.”

The Supreme Court heard arguments from the federal government and Christian legal advocacy group Alliance Defending Freedom over the Food and Drug Administration’s (FDA) actions to expand access to the pill mifepristone, one of two used in medical abortions.

Justice Samuel Alito invoked the Comstock Act during the arguments, bringing up a study that observed an increase in emergency room visits among those who received mail-order abortions. The 1873 law prohibits the mailing of anything related to contraceptives or abortion.

Responding to The Hill’s coverage of the hearing on X, formerly known as Twitter, Bush wrote, “The Comstock Act must be repealed. Enacted in 1873, it is a zombie statute, a dead law that the far-right is trying to reanimate.”

“The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban. Not on our watch,” she added.

Solicitor General Elizabeth Prelogar noted in her response to Alito that increased emergency room visits were not the same as increased adverse events, and half the women in the study he referenced did not receive any treatment.

During the arguments Alito questioned whether the FDA should have taken the Comstock Act into consideration when it got rid of the in-person dispensing requirement for mifepristone in 2021, effectively clearing the way for the pill to be sent through the mail.

Prelogar argued plainly that the FDA can only consider matters of safety and efficacy concerns when it comes to drugs, but added that the agency had received advice from the Office of Legal Counsel when it came to issue of Comstock.

The Comstock Act went largely unenforced in the years after the Supreme Court’s ruling in Roe v. Wade in 1973, but the Dobbs decision in 2022 brought new life to the legislation, with anti-abortion groups pointing to it as reason to roll back the FDA’s decision to drop in-person dispensing requirements.

Democrats have turned more of their attention towards Comstock as the fight over mifepristone continues. As NOTUS reported last week, Sen. Tina Smith (D-Minn.) briefed her Democratic colleagues on Comstock during a caucus meeting. Smith told NOTUS that Democrats would be ready to introduce legislation “as it’s needed” once the court case plays out.