The previously moot Comstock Act has been resurrected, giving new life to the anti-abortion movement

The Comstock Act of 1893, which was named after the anti-abortion crusader Anthony Comstock, was raised from the dead by Dobbs v. Jackson Women's Health, 142 S.Ct. 2228 (2022). The opponents of abortion argue for greater restrictions on access to medication abortions, which account for more than half the abortions nationally, and use of the mail based on the Comstock Act.

This federal law prohibits anyone who "knowingly" uses a company, common carrier, or interactive computer service for the "carriage" of "any drug, medicine, article, or thing designed, adapted or intended for producing abortion" (18 U.S.C. Sec. 1462(c)). Section 1461(c) similarly prohibits the mailing of "every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion." The law requires the sender or receiver to satisfy the requirement of wrongful intent (mens rea). Anyone violating the prohibitions is subject to being fined or imprisoned.

Although the Comstock Act has been amended numerous times since 1893, the anti-abortion prohibition language has remained the same. In other words, one may reasonably argue that Congress intended the prohibitions to continue as written.

To be clear, these sections do not make abortion pills or other related medications illegal or prohibit the FDA from approving them. Rather they create an obstacle to using the channels of interstate or foreign commerce to distribute abortion drugs and other items.

In 1973, the Supreme Court decided Roe v. Wade, which held that the Constitution generally protected a woman's right to choose to have an abortion. As a result, the Comstock Act's provisions were rendered moot, and thus federal prosecutors ignored enforcing the law. When Dobbs overruled Roe in 2022, the Supreme Court resurrected its relevance because the statute was never repealed. Justice Samuel Alito, writing for the majority, reasoned that it was returning the authority to regulate or prohibit abortions to the states and their elected representatives. Several states and anti-abortion advocates now demand that all organizations must stop shipping or receiving medication abortion drugs and other items.

In Alliance for Hippocratic Medicine, et al. v. Food and Drug Administration (22-cv-223 N.D. Tex.), District Court Judge Matthew Kacsmaryk invalidated the FDA's approval of the abortion drug mifepristone. The Fifth Circuit Court of Appeals partially stayed his order (23-10362). The Supreme Court is now considering whether the order should be stayed further (23-10362). Because the focus is on the stay and whether the FDA acted appropriately as a regulatory matter, the ultimate outcome in Alliance is not likely to resolve the Comstock Act question.

But the federal prohibitions are lurking in the background and are a threat to abortion access. In the Fifth Circuit, the parties vehemently disagreed on the application of the Comstock Act. But the court deferred consideration: "The speed of our review does not permit conclusive exploration of the topic."

The court laid the most recent foundation for a broad reading of the law, however. It referred to the plain wording of the prohibitions and expressed skepticism about applying the "judicial gloss and lax enforcement over the past century" to graft exceptions to the language. It also noted that except for a single footnote in one dissent, no Supreme Court decision supported a narrow reading of the law.

The irony is that Dobbs, which supposedly turned the abortion issue over to the states, may not turn out to be the case. Federal law dealing with using the channels of interstate commerce to provide drugs for medically induced abortions, as distinguished from surgical abortions, is apt to be central to the continuing abortion debate.

Until the Supreme Court decides whether the Comstock Act prohibits using the mail to deliver abortion drugs, abortion opponents will argue that the plain meaning of the law does just that. "Anyone" using the mail or other interstate carrier is at risk of criminal liability. This uncertainty will have a national chilling effect on pharmaceutical companies, health care providers, doctors, and adversely impact pregnant women seeking an abortion.

As originally enacted, the Comstock Act prohibited selling drugs for "causing unlawful abortion" in the federal territories. In its historical context, the law was never intended to prohibit the distribution of abortion drugs for lawful purposes. Unfortunately, the Supreme Court may not see it this way. Rather, the majority of the Court may find that the plain wording of the law effectively bans using the channels of interstate commerce to facilitate the distributions of abortion medication nationally. This result would adversely affect those states allowing medication abortions, including California.