Fears grow over Comstock Act, Justices Thomas, Alito

March 28, 2024

Abortion rights supporters are sounding the alarm that conservative Supreme Court justices want to use a long-dormant law to enforce a nationwide abortion ban.  

Justices Clarence Thomas and Samuel Alito repeatedly invoked the Comstock Act during oral arguments Tuesday in a case about the constitutionality of the Biden administration’s efforts to expand access to mifepristone.  

Alito questioned why the Food and Drug Administration (FDA) had not contended with the law in its decisions on expanding access to mifepristone through the mail.  

“This is a prominent provision; it’s not some obscure subsection of a complicated, obscure law. Everybody in this field knew about it,” Alito said.   

The 151-year-old law banned the mailing of materials that were deemed “obscene, lewd, [or] lascivious,” which included things such as contraception, abortion drugs and pornography. 

The law’s interpretation has been narrowed by Congress over the years, and some experts say it’s been rendered obsolete.  

The law wasn’t enforceable while Roe v. Wade was on the books and hasn’t been applied in nearly a century. But now that Roe has been overturned, anti-abortion activists see an opening.  

These activists, working with former Trump administration officials, have been laying the groundwork for the next Republican administration to apply the Comstock Act to prevent the mailing of any abortion drugs and materials, effectively banning all abortions without needing Congress to act. 

“It was deeply disturbing to see this extreme argument being taken very seriously by two of the justices who overruled Roe v. Wade,” said Julia Kaye, senior staff attorney with the American Civil Liberties Union’s Reproductive Freedom Project.

While a majority of the court overall appeared skeptical of arguments that the Biden administration improperly expanded access to mifepristone, legal experts are concerned one or both of Thomas and Alito could write a Comstock-focused opinion arguing the law is viable.  

Such an opinion could embolden a future GOP administration and anti-abortion groups to continue pressing forward with plans to enforce the Comstock Act in ways it hasn’t been enforced before, said Leah Litman, a professor of law at the University of Michigan Law School.  

“It would not have the power to, let’s say, definitively resolve the issue and say whether the court would allow a Republican administration to begin throwing abortion providers and distributors of any medication abortion in jail,” Litman said.  

“It gives them whatever kind of small measure of legitimacy can be offered by at least one Supreme Court justice and possibly two, adopting your position. It’s encouraging; it’s like a sign of, okay, this has a chance of actually working, so let’s keep at it,” she added. 

Lower courts have said the Comstock Act only applies to unlawful abortions and doesn’t prohibit the distribution of medication or other items intended to be used for lawful purposes.  

A memo from the Justice Department in 2022 interpreted the law as one that prohibits the mailing of items only when the person mailing them knows they’re going to be used for unlawful purposes.  

Mifepristone is federally approved not only for abortions but also for miscarriage management. The manufacturer doesn’t know if any particular person is going to use it unlawfully and doesn’t mail the drug with the intention of it being used unlawfully. 

That’s the view experts said courts have acted under for the last few decades. But anti-abortion groups think that needs to change. 

“We don’t think that there’s any case of this court that empowers FDA to ignore other federal law,” said Erin Hawley, the attorney representing the conservative group challenging FDA’s expansion of mifepristone access, in response to a question from Thomas. “The Comstock Act says that drugs should not be mailed either through the mail or through common carriers.”   

Some federal judges have shown an openness to that viewpoint. For example, U.S. District Judge Matthew Kacsmaryk cited the Comstock Act in his initial ruling that completely invalidated mifepristone’s approval.  

While the majority opinion of the 5th Circuit Court of Appeals did not reference Comstock, a partial dissent by Judge James Ho did.  

Legal experts said even if the Biden administration wins at the Supreme Court this term, access to abortion pills could still very much be at risk if Alito and Thomas succeed in soliciting a Comstock-focused challenge in the future. 

“And I do think that there will be bigger anti-abortion groups and states … [that] will seize on that and try to challenge the state sale of abortion medication on the merits,” said Lawrence Gostin, a professor of Global Health Law at Georgetown University Law School.   

Under questioning from Thomas and Alito on Tuesday, both Solicitor General Elizabeth Prelogar and Jessica Ellsworth, the attorney for drug manufacturer Danco, said Comstock doesn’t apply to the mifepristone case.   

“I think that the Comstock provisions don’t fall within FDA’s lane,” Prelogar said in response to Alito’s questioning.  

“This statute has not been enforced for nearly 100 years, and I don’t believe that this case presents an opportunity for this court to opine on the reach of the statute,” Ellsworth said in response to a question from Thomas.   

Greer Donley, a professor at the University of Pittsburgh Law School, agreed that the mifepristone case “was never a great vehicle for Comstock.”  

“I think it was really more a strategy decision to kind of bring Comstock along into the national consciousness and to basically … normalize it in every way possible. And so I suspect that whatever Thomas and Alito write will be along those lines,” Donley said.  

Some Democrats in Congress have reportedly started to strategize how to weaken the Comstock Act, and following Tuesday’s arguments, Rep. Cori Bush (D-Mo.) called for Congress to repeal the law entirely.