Alaw passed 150 years ago that banned the mailing of contraceptives, lewd materials and drugs that induce abortions could provide a pathway for effectively banning abortion nationwide — even in states where the procedure is legal.
A law passed 150 years ago that banned the mailing of contraceptives, lewd materials and drugs that induce abortions could provide a pathway for effectively banning abortion nationwide — even in states where the procedure is legal.
"Comstock is really the backdoor way to remove access to abortion across the whole country," said Greer Donley, a University of Pittsburgh Law School professor who specializes in abortion law. The law's critics say it's discriminatory against women, pointing out that at the time of its adoption, women could not vote and the Supreme Court had not yet interpreted the Constitutional Equal Protection Clause to prohibit sex discrimination.
"Now that Roe is gone, the law springs back into life," said Roger Severino, the vice president of domestic policy at the conservative think tank, the Heritage Foundation, who also served as a top civil rights lawyer in the Department of Health and Human Services under the Trump administration. National News What comes next after the Supreme Court blocked — for now — restrictions on abortion pills 'The Supreme Court is going to have to address this issue' Already, the Comstock Act has played a cameo role in the ongoing, high-stakes lawsuit over the U.S. Food and Drug's Administration regulation of abortion pills, which made it up to the Supreme Court once and is likely to land with the justices again.
Both sides of the abortion debate acknowledge that the clearest test of what the Comstock Act means likely wouldn't emerge until a Republican takes the White House and puts in place Justice Department leadership that would be willing to enforce the law. Listen now and subscribe: Apple Podcasts | Google Podcasts | Spotify | RSS Feed | Omny Studio "Do I think, under a Trump presidency, they're going to confiscate surgical gloves because they could be adapted for use in abortion? No, I don't think that's probably going to happen," Ziegler added."But the language is so broad that it really would be the license to go after a lot of things beyond just abortion pills.
There are also questions about whether the law applies not just to medication abortion, but to the tools used for surgical abortions as well. A lawyer representing the anti-abortion doctors in the current FDA case told CNN they're not focused on that question while their assertions about mailing abortion pills play out in court.
One case is a challenge to some of the ordinances that New Mexico Attorney General Raúl Torrez filed to the state Supreme Court early this year. His briefs argue that the Comstock Act is irrelevant to the questions before the high New Mexico court, and he is asserting that the ordinances run afoul of state law and the state constitution.
A coalition of Republican state attorneys general, meanwhile, invoked the Comstock Act in a February letter to pharmacy chains, warning the companies that private litigation could be used to enforce the law against them if the pharmacies seek to dispense abortion pills in their states.
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