What is the Comstock Act of 1873 and how is it tied to abortion pill case?

March 29, 2024

On Thursday, the Supreme Court heard arguments in a case that could reinstate restrictions on the abortion pill mifepristone, the first time abortion rights returned to the justices since the court overturned Roe v. Wade in 2022.

During the arguments, conservative justices Clarence Thomas and Samuel Alito repeatedly invoked the Comstock Act.

What is the Comstock Act?

The Comstock Act is a set of federal laws passed by Congress in 1873. It made it illegal to send “obscene, lewd or lascivious,” “immoral” or “indecent” materials through mail, including drugs that induce abortions and contraception.

The law is named after Anthony Comstock, an anti-vice activist who was dedicated to upholding Christian values. He opposed abortion, obscene literature, contraception, masturbation, gambling, and prostitution, among other things, the Free Speech Center wrote.

After the bill was passed by Congress, Comstock became a special agent in the United States Post Office who was charged with enforcing the law and arresting people who didn’t follow it.

The law’s scope was repeatedly narrowed by federal courts and Congress, including the birth control provision in the 1970s. The government hasn’t enforced the law since the 1930s, The Associated Press reported.

The law was dormant for years until Roe v. Wade, the federal right to an abortion, was struck down by the Supreme Court in 2022.

How does it work today?

In 2021, the Food and Drug Administration (FDA) loosened its requirements on mifepristone. Before that, there was no way to enable abortion through the mail.

Since the Dobbs v. Jackson Women’s Health Organization ruling, which struck down Roe and returned power to the individual states, anti-abortion groups have relied on the Comstock Act to try and scale back on mailed reproductive drugs.

Republican state officials seeking to stop national pharmacy chains from shipping abortion pills to their states with new strict abortion laws have also cited Comstock, the AP noted.

On Thursday, the Supreme Court heard a case that questions whether federal regulators overstepped their authority by loosening mifepristone restrictions and making the medication easier to access.

During arguments, Alito questioned why the FDA had not contended with the law in its decisions on expanding 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,” he said.

Alito, along with Thomas, asked all three attorneys in court about Comstock. Some abortion-rights groups are expressing concern that Thomas and Alito could write a Comstock-focused opinion and bring up future legal issues for a GOP administration.

A decision in the case is expected later this summer and could have a major impact on the 2024 presidential election. After Roe was stuck down in summer 2022, Democrats have used abortion as an effort to get voters to turn out against Republicans.