WASHINGTON (CN) — A morality law from 1873 is back on the legal forefront this week, as congressional Republicans argue the federal government overstepped its authority in allowing an abortion drug to remain on pharmacy shelves.
Lawmakers have downplayed the significance of that law — the Comstock Act — in the high court’s potential judgment. Regardless, experts warn that if the Supreme Court recommends enforcing the Comstock Act and its related state and federal statutes, it could have rippling consequences that extend beyond even abortion rights.
The justices next week will consider whether the Food and Drug Administration erred in its 2000 decision to approve mifepristone, one of a pair of drugs used in medication abortions. The hearing comes after both a Texas federal court and the Fifth Circuit ruled last year that the FDA did not adequately consider what they called mifepristone’s harmful side effects.
Claims about mifepristone’s dangers are heavily disputed by the FDA, the Justice Department and leading medical groups. Despite that, a group of 145 Republican lawmakers from both the House and Senate say they agree with the lower court’s interpretation, telling the justices in an amicus brief this week that the FDA’s approval of mifepristone “has endangered patient health and safety.”
In addition to these purported health concerns, the Republicans also took aim at the FDA’s 2021 decision to approve mifepristone for mail-order deliveries — a move that they argued “violates longstanding federal laws.” Before 2021, patients hoping to obtain the abortion drug in some states were required to pick it up in person.
To back up these claims, lawmakers pointed to a group of bills known as the Comstock laws, the first of which — the Comstock Act itself — was enacted in 1873.
With these laws, they wrote, Congress “barred the abortion industry from using the United States Postal Service to mail abortion-inducing drugs, including the chemical abortion regimen of mifepristone and misoprostol.” They argued that mailing abortifacients through other courier services is similarly prohibited.
“Congress has never removed the prohibition on mailing chemical abortion drugs,” the Republicans added.
When it first became law, the 1873 Comstock Act clamped down on both abortion rights and contraception, making it illegal for Americans to mail items “designed or intended for the prevention of conception or procuring of abortion.”
Subsequent court cases throughout the 20th century pared down the definition of the act and its later iterations to apply only to illegal contraception and abortion aids. Congress removed the law’s restriction on contraception altogether in 1971.
The feds has largely refused to enforce the Comstock acts for the better part of a century. Following the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which ended the national right to abortion, anti-abortion activists have once again begun citing the morality laws.
“It’s been sort of front and center in the anti-abortion movement more recently, and off-and-on again since Dobbs,” said Mary Ziegler, a professor at the University of California Davis School of Law who specializes in reproductive law.
While the Comstock acts don’t form the backbone of the arguments against mifepristone that the Supreme Court is now considering, Ziegler said she wasn’t surprised to see the archaic laws referenced by Republican lawmakers. Many of those lawmakers, she noted, are affiliated with the anti-abortion movement.
Still, Ziegler thought it was notable to see members of Congress going to bat for the law. “There are members of Congress defending it,” she said. “Not just saying ‘yes, it’s the law,’ but saying that it’s a good law.”
If the Supreme Court were to recommend that Congress enforce the Comstock acts, it would likely trigger debate among lawmakers about what exactly the laws prohibit. After all, Ziegler noted, the laws restrict the distribution of not just abortifacients but also pornography or other “indecent or immoral” items.
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