Our sclerotic Congress has left the Comstock Act of 1873 on the books, in part because much of it was effectively made unenforceable by the Warren and early Burger Courts. The problem is that a reactionary Court is nullifying reproductive rights. This puts access to abortion in serious danger nationwide, even if Republicans don’t have the votes to pass a statutory ban:
Why it matters: While Republicans disagree about whether to pursue a national abortion ban that would face long odds in Congress, a GOP president may be able to unilaterally curb access to medication abortion across the country using an obscure 19th-century law.
State of play: At issue is the meaning of the 1873 Comstock Act, which banned the mailing of “obscene” material like pornography, as well as abortion drugs and contraception. While the law has been cut down over the years, the abortion provision remained but was ignored while Roe v. Wade was in place.
- Medication abortion usually involves the use of two drugs, mifepristone and misoprostol, in the first 10 weeks of pregnancy, and accounts for more than half of abortions in the U.S.
- The Heritage Foundation, which has proposed detailed policies for a potential GOP administration, argues that Comstock “unambiguously prohibits mailing abortion drugs” and says the next administration should “enforce federal law against providers and distributors of [abortion] pills.”
- The Biden administration disagrees with this interpretation. A Justice Department memo issued last year contends that the law doesn’t prohibit mailing abortion drugs when the sender expects them to be used lawfully.
- A new administration could easily change that interpretation, experts say, and not just restrict patients from receiving pills at home — but also stop pharmacies and health care providers from getting shipments.
- “If Trump were elected, not only would I not be surprised, but I would expect the administration to direct DOJ to overturn its guidance on the Comstock Act and rule that shipping mifepristone through the U.S. Postal Service is a violation of that statute,” said Lawrence Gostin, a Georgetown Law professor who supports abortion rights.
- This “would create a significant impediment to access to the most common, safest and most effective method of getting an abortion,” Gostin added.
- The Trump campaign did not respond to a request for comment on its thinking about the Comstock Act.
Trump will face intense pressure from Republican politicians and anti-abortion activist to do it, and there’s roughly no chance he won’t go along:
But a Republican president would likely face intense pressure to do so from anti-abortion groups and members of their own party.
- A group of Republican senators earlier this year warned pharmacies against shipping abortion drugs, adding they will “insist” that the next president rescind DOJ’s Comstock Act memo.
- The senators’ letter named a long list of anti-abortion groups that were supportive of their efforts.
I hope the political press will be able to the crucial stakes of the 2024 election (one candidate is marginally older than the other) clear to the public, and not let Uncle Joe UTERUS distract people.