The Poison Pill in the Mifepristone Lawsuit That Could Trigger a National Abortion Ban

The Poison Pill in the Mifepristone Lawsuit That Could Trigger a National Abortion Ban

The Poison Pill in the Mifepristone Lawsuit That Could Trigger a National Abortion Ban

In their push for a nationwide abortion ban, anti-abortion groups and Republican officials alike seem to be embracing the idea of giving the Comstock Act new life.


When the Supreme Court’s conservative majority overturned Roe v. Wade last June, they cited Victorian-era state abortion bans—which were nullified by Roe—to justify “return[ing]” the abortion issue to the states.

Not mentioned anywhere in the opinion is another Victorian-era law that was used to ban the mailing of abortion drugs and devices nationwide—and has never been repealed.

Now, the Comstock Act, which almost everyone except a handful of anti-abortion strategists and historians seems to have forgotten about, is at the forefront of a fast-moving effort to ban abortion in every state.

“The text of the act itself is so broad,” Rachel Rebouché, dean and law professor at Temple University Law School said. “It could effectively shut down, if literally applied, all abortions.”

On Friday, the Supreme Court, in a 7-2 ruling, stayed Judge Matthew Kascmaryk’s deeply ideological April 7 decision to suspend the FDA’s 23-year-old approval of mifepristone, the first of two drugs typically used in medication abortions. The Supreme Court also stayed the Fifth Circuit’s ruling that would have kept mifepristone’s FDA approval in place but reimposed restrictions on the drug from before 2016. Justices Clarence Thomas and Samuel Alito dissented. Friday’s decision preserves the status quo on mifepristone for now. But a wider battle over medication abortion is looming. The justices made no mention of the Comstock Act, even though the anti-abortion groups who filed suit against mifepristone had invoked the law, claiming that every FDA decision on the drug beginning with its approval in 2000 had violated it. Kacsmaryk said in his ruling that the Comstock Act banned the mailing of abortion drugs, and a Fifth Circuit panel wrote that anyone who “knowingly mak[es] use of the mail for a prohibited abortion item” violates “the plain text” of the law. With lower courts and plaintiffs pushing their interpretations of the Comstock Act, it will likely be back at the Supreme Court before long.

The Comstock Act, passed in 1873 and named for the anti-vice crusader Anthony Comstock, was intended to prevent the circulation of “obscene” material, including “lewd, lascivious, or filthy” books, pamphlets, or drawings, and information or devices used for contraception or abortion. It imposes a prison sentence of up to five years on anyone who sends or receives by mail or common carrier “any drug, medicine, article, or thing” intended to induce abortion. If the Supreme Court interprets the law literally, abortion providers would have to shut down or find a way to get everything from medications to surgical gloves without using the mail.

The Comstock Act doesn’t just ban the mailing of abortion drugs or paraphernalia. The text also bans the circulation of information about abortion, although legal experts say any effort to revive a federal ban on abortion information would yield steep free speech challenges. And while provisions banning the mailing of contraception were removed from the law by Congress in 1971, some experts say the law’s ban on any drug or device for “indecent or immoral use” could be interpreted to include a host of non-abortion-related drugs, from PrEP to vaccines.

“Obviously, there are many drugs that are approved for the market that some portion of the Christian conservative movement views as indecent or immoral,” said Elizabeth Sepper, law professor at the University of Texas at Austin. “The language of Comstock is broad enough that you could try to bring contraception back in.”

The Biden administration disputes the idea that the Comstock Act can be used in this way. In a December memo, the Justice Department wrote that the law’s prohibition on mailing abortion drugs applies only if the sender intends for the drugs to be used “unlawfully.” The agency points to court rulings from the 1930s that reach the same conclusion.

“This act has never been referenced in any litigation after the 1930s,” Rebouché said. “And I think it’s because those cases made clear that it actually had a pretty narrow scope.”

There are also protections under the law to prevent prosecutions that are fundamentally unfair—a categorization that would arguably apply to the use of an anti-vice law that hasn’t been enforced in almost a century. “The [Comstock] Act is analogous to various laws passed during the vice era, like criminalizing adultery, that remain on the books in some states but would be nonsensical today and, under current privacy jurisprudence, unconstitutional,” Rebouché and two other law professors, David Cohen and Priscilla Smith, wrote in a memo released Friday by the Program for the Study of Reproductive Justice at Yale Law School. “The Act lacks democratic legitimacy given its passage when women and communities of color, especially Black women, were excluded from public life and participation,” the memo continued.

In the decades after the Comstock Act was last enforced, the Supreme Court legalized contraception and abortion, and the anti-abortion movement distanced itself from any whiff of the book-banning, anti-vice crusading milieu that produced the act. Defenders of abortion rights accused anti-abortion activists of being anti-woman and anti-sex. Embracing Anthony Comstock would have proven them right. “Everyone in the anti-abortion movement was not going to say, ‘Actually, yes, that’s right, and by the way, our favorite law is the Comstock Act,’” Mary Ziegler, historian and law professor at University of California, Davis said.

Meanwhile, a sense of complacency set in among Democrats and pro-choice advocates who thought that Roe v. Wade would never be overturned. Even after the contraceptive provisions were repealed, the abortion sections remained. Over time, most people seemed to forget about them.

Jonathan Mitchell, the architect of the Texas six-week abortion ban with its infamous private citizen enforcement mechanism, was a notable exception. Mitchell clerked for Supreme Court Justice Antonin Scalia and served as solicitor general of Texas before making a name for himself on the conservative fringe of the legal movement with his ideas about how laws that everyone assumes are dead—like Victorian-era abortion bans—don’t actually go away until they’re repealed by the legislative body that passed them. Mitchell’s claims about how zombie laws that have been stopped by courts can rise from the dead and even be enforced retroactively against people who violated them while they were on pause were once considered so extreme they seemed more like thought experiments, as I wrote for Reveal last year.

Legal scholars across the political spectrum have objected to Mitchell’s theories. “Jonathan always puts the fear of God in me, because God forbid he should be right on this particular question,” Richard Epstein, Mitchell’s former teacher and one of the most eminent legal scholars on the right, told a Federalist Society panel in 2018.

But in their quest to revive a nationwide ban, and their understanding that Congress is not going to pass one any time soon, anti-abortion groups and Republican officials alike seem to be embracing the idea of giving the Comstock Act new life.

As the Dobbs case made its way to the Supreme Court with its newly conservative majority, Mitchell kept his thoughts on the possibilities that Comstock might offer to himself. “I knew about Comstock before Dobbs, but I wanted to say nothing about it,” Mitchell told me. “I really was hoping nobody would say anything about the Comstock laws until Dobbs came out.” After all, if people understood that a nationwide abortion ban was lurking on the books, it would blow up any plausible claim that the justices were handing abortion back to the states.

Once Roe was dead, Mitchell set to work. He began including references to the Comstock Act in every lawsuit and piece of legislation he could generate. To spread these ideas, Mitchell reprised his partnership with anti-abortion activist Mark Lee Dickson, founder of the “Sanctuary Cities for the Unborn” initiative. Before the Texas six-week ban had passed, Mitchell and Dickson had tested the law’s private citizen enforcement mechanism with ordinances passed by cities across Texas. Now, they started crafting anti-abortion ordinances based on the Comstock Act that Dickson persuaded cities and counties in New Mexico to pass. The goal was to provoke a challenge from Democratic state officials, setting up a showdown that would help get Comstock to the Supreme Court.

Since Comstock was a federal law, he and Dickson would argue, it trumped any state-level abortion protections. Plus, the cities would have a degree of legal cover because they weren’t enacting any new bans on abortion; they were just pointing to a federal law that was already on the books. If the cities were sued, Mitchell promised to defend them in court at no charge. So Dickson showed up at city and county government hearings along New Mexico’s border with Texas, wearing his signature backwards black baseball cap, packing the room with local supporters. By the end of January, Dickson had convinced cities and counties that encompassed the southern half of the eastern New Mexico border to adopt the ordinances.

With Mitchell’s encouragement, Dickson has fanned out across the country. Now, Dickson says, cities in Virginia, Nevada, South Carolina, Montana, and Illinois are considering the Comstock-laced ordinances, though none has passed one. The further the pair can sow the seeds of the Comstock Act, the more likely they are to get the Supreme Court to consider it.

“From my standpoint, I want to get Comstock to the Supreme Court as quickly as possible,” Mitchell told me.

In January, when New Mexico Attorney General Raúl Torrez sued the counties of Lea and Roosevelt and the cities of Clovis and Hobbs for passing Dickson’s ordinances, Mitchell and Dickson were delighted. They hoped it would help speed up efforts to generate a split in higher-court opinions about Comstock that would entice the Supreme Court to take up the law. (In March, New Mexico’s Supreme Court blocked the ordinances in response to the state’s emergency petition; Lea County has filed a responding brief, citing the Comstock Act.)

That’s not the only way Mitchell is pushing his interpretation of Comstock. In March, he filed a lawsuit in state court in conservative Galveston County, Tex., on behalf of Marcus Silva, the ex-husband of a woman who self-managed an abortion while she was in the process of divorcing Silva. Silva is suing three of his ex-wife’s friends for $1 million each for wrongful death and murder because they helped her get abortion pills. Coverage of the case has focused on Silva’s creepy decision to use photos of his ex-wife’s text messages as evidence and his misrepresentation of when he learned about the abortion, as well as on how the lawsuit could advance claims of fetal personhood. Most people seem to have missed the Easter egg Mitchell placed in two paragraphs several pages in, where he accuses the manufacturer of the abortion pills of being jointly liable for the fetus’s wrongful death under the Comstock Act.

If the courts buy that argument, it “would be a game changer,” Mitchell told me. “If a drug manufacturer can be sued for wrongful death on the theory that they violated the Comstock laws, that could take the drug off the market.”

The sudden revival of a Victorian-era vice law that dates to a time when women weren’t allowed to vote might seem far-fetched. Even Mitchell admits that the Comstock Act is “overbroad.”

There’s no exception for the life of the pregnant person, for example, and there’s nothing to prevent someone who has an abortion from being prosecuted. The law could be read to apply to non-abortion uses of abortion drugs like misoprostol, which is also used to treat ulcers.

But Mitchell isn’t the only anti-abortion strategist who is taking Comstock for a test run. In January, the Biden administration announced that it would allow retail pharmacies to dispense mifepristone if consumers had a prescription. After retail pharmacies announced plans to supply the drug, a group of Republican attorneys general threatened legal action against CVS and Walgreens, citing the Comstock Act in their letter. The attorneys general cite the law by its code: “18 U.S.C. 1461,” as do the anti-abortion medical groups in their complaint that resulted in Friday’s Supreme Court decision.

For Mark Lee Dickson, though, any hesitation about embracing Comstock by name seems to have faded.

Last Monday, Dickson stood outside the US Supreme Court Building to announce the latest attempt to get a Comstock case in play, this time in a state court in New Mexico. The lawsuit filed against New Mexico’s governor and attorney general by Mitchell on behalf of the city of Eunice, N.M., asks the court to endorse the idea that the Comstock laws “outlaw all shipment and receipt of abortion pills and abortion-related paraphernalia throughout the United States.” (Eunice passed its ordinance on the day New Mexico’s attorney general filed his lawsuit against the other cities and counties, so it wasn’t included in that case.)

With this latest lawsuit, Mitchell believes he’s set up a Catch-22 for the New Mexico courts that will accelerate his effort to get the Comstock Act before the Supreme Court no matter what the outcome is. His plan is to force the courts to weigh in on what the Comstock Act can do in states like New Mexico where abortion remains legal.

“If you look at the way we wrote the ordinances, we didn’t say it’s illegal to ship abortion pills into Eunice,” Mitchell said. “We said it’s illegal to violate 18 USC 1461 and 1462 in the city of Eunice, regardless of what they mean.”

If the New Mexico courts say Eunice has illegally restricted abortion access with its use of Comstock, then, in Mitchell’s view, the court is endorsing the idea that the law bans the mailing of abortion drugs or devices even in states like New Mexico where abortion is legal. If, on the other hand, the New Mexico courts agree with the Biden administration’s view that Comstock applies only when the drugs or devices are being used “unlawfully,” then the city hasn’t run afoul of state law and New Mexico’s attorney general can’t sue the city to stop its ordinance—as he’s done to the other cities and counties. In that case, Eunice’s ordinance can’t be used to ban abortion, but it may act as a deterrent to clinics that would consider setting up there anyway.

“Either way, we get a favorable ruling,” Mitchell said.

In his Supreme Court press conference last Monday, flanked by New Mexico anti-abortion activists and Eunice city council members, Dickson stood at a podium and announced that New Mexico state officials who sought to defend their state against his ordinances had been “Comstocked.” Portales, N.M., resident Logan Brown stood in the foreground holding a handmade poster that read “Comstock 18 USC 1461-1462” in black marker.

“There’s a whole lot more discussion about Comstock now than there was even a couple of weeks ago,” Dickson told me last Tuesday. When I reached him by phone, he was in Salt Lake City shopping for socks, jeans, and a button-down shirt in preparation for a meeting on one of his proposed ordinances in West Wendover, Nev., where Planned Parenthood wants to open a clinic.

“Comstock is becoming more of a household name,” he said.

Much of that discussion has been critical of Anthony Comstock, whose crusades against everything from lewd books to contraceptive information resulted in thousands of arrests, and, according to Comstock himself, drove at least 15 of his targets to suicide. Dickson has taken it in stride. He said he’s worked with people he disagrees with in order to advance the cause of banning abortion—and it would seem the ghost of Anthony Comstock is no exception.

“How is history going to paint a lot of people in our time?” Dickson told me. “And who knows, maybe one day I’ll be called an anti-vice crusader, which kind of sounds like Batman, right?

“Who wants to be called a pro-life activist or anti-abortion activist when they can be called an anti-vice crusader?”

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