How an obscure 19th Century law is being weaponized against bodily autonomy and abortion rights

On Tuesday, the U.S. Supreme Court heard arguments in FDA v. Alliance for Hippocratic Medicine, a case that could restrict nationwide access to mifepristone — one of two drugs used in medication abortions. 

While the Food and Drug Administration (FDA) approved mifepristone for the medical termination of pregnancy in 2000, a lawsuit filed by the anti-abortion organization Alliance for Hippocratic Medicine in November 2022 challenged the longstanding FDA approval and expansions to access that occurred in 2016 and 2021. The good news is that there appears to be a public consensus that the U.S. Supreme Court will dismiss the case on standing, meaning that the justices won’t agree that the organization that brought the case forward had sufficient legal grounds to do so in the first place.

If this happens, access to mifepristone will stay as it is. A Guttmacher Institute report from the Monthly Abortion Provision Study recently found tha medication abortions accounted for nearly 63 percent of all abortions in the United States. However, abortion rights advocates and legal experts are flagging the mention of a 19th century obscenity law called the Comstock Act in the arguments as a potential pathway to what would amount as a nationwide abortion ban. 

During oral arguments on Tuesday, conservative Supreme Court Justices Samuel Alito and Clarence Thomas both brought up the Comstock Act. In questioning, Thomas said to a lawyer for Danco Laboratories, the manufacturer of mifepristone, that the Comstock Act is "fairly broad, and it specifically covers drugs such as yours." Alito said the Comstock Act is a "prominent provision" and not "some obscure subsection of complicated obscure law."

The Comstock Act is a 150-year-old anti-obscenity law that banned various items related to sex and reproductive health, that many people see as quite ordinary, from being delivered via mail. The term "obscenity" initially wasn't defined. But it eventually was updated to not be applied to birth control.

Julia Kaye, ACLU’s senior staff attorney with the Reproductive Freedom Project, said the anti-abortion extremists who brought this case forward initially argued that the Comstock Act was “one reason why the court should strip away access to mifepristone through mail order pharmacies.” However, the Fifth Circuit majority did not engage with that question. Subsequently, the briefing in the Supreme Court did not directly address Comstock. 

“Nevertheless, Justices Alito and Thomas are clearly paying close attention to that argument, they asked numerous questions about it, and we could well see Comstock referenced in the Court’s ultimate decision,” Kaye said in a press briefing after the hearing. “Either with respect to the outcome of this case, or a broader signaling of how some of the justices believe this Comstock Act could be used to strip away a right to abortion nationwide altogether.”

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Solicitor General Elizabeth Prelogar argued during the arguments that the Comstock Act's provisions wouldn't have been factored into the FDA's decision to approve mifepristone as safety and efficacy are the agency’s only concerns when it comes to restrictions.

After the hearing, the anti-abortion group Live Action released a statement invoking the Comstock Act, calling on the Supreme Court to use it to stop “abortion pill trafficking.” It’s not the first time anti-abortion advocates have invoked the Comstock Act, and abortion rights advocates foresaw it could have been part of yesterday’s oral arguments. As Susan Rinkunas reported for Jezebel, nearly 150 Republican members of Congress asked the Supreme Court to use the Comstock Act as a justification to restrict access to mifepristone.

Seema Mohapatra, a health law and bioethics expert at Southern Methodist University, told Salon, she is concerned about the renewed focus on the Comstock Act. 

“The Justices definitely did not need to bring it up in terms of why they took the case, it seemed to be a very targeted reason for bringing it up, kind of signaling to others that they're willing to use the Comstock Act as a reason to restrict access,” Mohapatra told Salon. “I would guess that Alito and Thomas’s opinions probably have something to do with the Comstock Act.” 

Alexis McGill Johnson, president of the Planned Parenthood Action Fund, emphasized in a media briefing after Tuesday’s hearing that the courts and Congress have “made clear that the Comstock Laws do not apply to lawful abortions. 

“This is just another desperate attempt to advance their extreme agenda,” McGill Johnson said. 

Mohapatra added the Comstock Act hasn’t been used for over 100 years and should have been repealed by now. But she’s concerned that a Republican administration and Department of Justice could weaponize it. 

“I think a lot of the press after the oral arguments said they’re going to dismiss the case, and I agree with that,” she added. “But those questions were problematic because if a Republican administration or Republican DOJ decide to use the Comstock Act to restrict anything related to abortion, any instruments, abortion pills, then that is not even going to require any kind of Congressional action.” 

Indeed, it would result in a nationwide a abortion ban. In a media statement, Elisa Wells, co-founder of Plan C Pills, raised concerns about the Comstock Act being part of the oral arguments, too. 

“Comstock is an antiquated, puritanical law designed to suppress 'vice in all forms' and criminalize bodily autonomy,” Wells said. “This antiquated law has no place in modern society or applied to modern medicine and care.”

This week, Democratic Congresswoman Cori Bush said in a social media post that 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,” she said. “The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban.”