The Supreme Court heard oral arguments Tuesday concerning a challenge to the FDA’s approval of the abortion drug mifepristone. As Daily Kos’ Joan McCarter reported on Wednesday, most of the justices seemed skeptical about restricting the drug’s availability based on the arguments made by a right-wing group whose idea of appropriate medical care depends more on religion than science.
However, both Justice Samuel Alito and Justice Clarence Thomas made sure to leave a trail of legal breadcrumbs hinting at a way for conservatives to not just prevent women from having access to mifepristone, but possibly enact a total national ban on abortion.
“This is a prominent provision,” said Alito. “It’s not some obscure subsection of a complicated obscure law.”
The law he was referring to is the Comstock Act, an 1873 law against obscenity that has rarely been enforced over the past century and is generally remembered in the same breath as Prohibition, a misguided attempt to legislate morality that’s been dead for close to a century. But for conservatives, this porn law from the Victorian Age really isn’t obscure. It’s the foundation for their next big assault on reproductive rights.
The Comstock Act’s official title, “An Act for the Suppression of Trade In, and Circulation of, Obscene Literature and Articles of Immoral Use,” gives a solid picture of its intention. Named for a 19th-century campaigner against obscenity and prostitution, the law made it illegal to advertise, sell, or give away an obscene book, pamphlet, picture, or drawing. In fact, the wording of the text was so broad that, according to law professor Mary Ziegler speaking to The New York Times, it outlawed everything from “somebody writing a letter to somebody asking them for a date if they weren’t married” to “somebody mentioning the existence of an abortion in a newspaper.”
Among the things that offended Anthony Comstock were advertisements for birth control. He thought that the ads themselves were obscene and that the availability of contraception would increase lust and lewdness. So the law he personally drafted and delivered to Congress bans not only information about contraception, but also the mailing of related devices. Again, the language of the act is very broad, banning any article or item “intended for the prevention of conception or procuring of abortion.”
Thousands of people were prosecuted under the act in the late 19th and early 20th centuries. However, as the Times notes, a backlash against the law grew as women gained the right to vote and took more control over their own lives. Pioneering birth control advocate Margaret Sanger clashed with the law several times, and by the time of a 1936 appellate court ruling, Comstock had largely been rendered toothless. Since then, rulings like 1965’s Griswold v. Connecticut, which allowed married couples to use contraception without any government restriction or interference, have only underscored the act’s irrelevance. In 1971, two years before the Roe v. Wade ruling legalized abortion, Congress formally removed Comstock’s ban on contraceptives.
What Alito is holding up as “a prominent provision” is a sort of legal living fossil—a law left on the books because it’s become so irrelevant that no one even had a reason to worry about it.
Until now.
As The Hill reported on Thursday, abortion rights groups are pointing at the statements from Thomas and Alito as a warning that this moribund law might return in an even more virulent form now that Roe v. Wade has been overturned. The Comstock Act has become the foundation for a conservative push that goes well beyond blocking mifepristone.
The far-right wants to turn this act into a national ban on abortion that wouldn’t require a single piece of new legislation.
These activists, working with former Trump administration officials, have been laying the groundwork for the next Republican administration to apply the Comstock Act to prevent the mailing of any abortion drugs and materials, effectively banning all abortions without needing Congress to act.
As Benjamin Weiss reported last week for Courthouse News Service, Comstock’s revival by the right is a recent phenomenon. Anti-abortion groups began citing this law after the Dobbs v. Jackson Women’s Health Organization decision in 2022 took away a national right to abortion.
And right at the heart of this revival are two people who share one name: Missouri Sen. Josh Hawley and his wife Erin Hawley. Erin isn’t just a conservative attorney; She’s a conservative attorney who led oral arguments to the Supreme Court in the mifepristone case. During those arguments, Thomas asked Erin directly about applying the Comstock Act.
JUSTICE THOMAS: Ms. Hawley, the—I am sure you heard the answers of the Solicitor General and the counsel for Danco with respect to the Comstock Act. I’d like you to comment on their answers.
MS. HAWLEY: Sure, Justice Thomas. We don’t think that there’s any case of this Court that empowers FDA to ignore other federal law. With respect to the Comstock Act as relevant here, the Comstock Act says that drugs should not be mailed through the—either through the mail or through common carriers. So we think that the plain text of that, Your Honor, is pretty clear.
Conservatives appear unlikely to be successful in arguing against the FDA’s decisions on mifepristone. However, the statements from Alito and Thomas underscore the importance of the Comstock Act as a backdoor means of imposing a national abortion ban.
The best way to resolve that issue is simply to kill what remains of the Comstock Act. And the best way to achieve that is also the best way to address so many other crucial issues: Elect more Democrats to Congress.
Another special election just delivered still more bad news for the GOP, but Democrat Marilyn Lands’, well, landslide should really have Republicans quaking. As we explain on this week’s episode of The Downballot, this was the first test of in vitro fertilization at the ballot box since the Alabama Supreme Court’s ruling that imperiled the procedure, and Republicans failed spectacularly—with dire implications for November.