Prosecutors haven't invoked the 1873 Comstock Act in an abortion case in decades. Conservatives see it as a trump card in the post-Roe era.
For decades, the department noted, courts agreed “the Comstock Act does not categorically prohibit” distribution of drugs intended to induce abortions.
Two of the three judges at the 5th Circuit Court of Appeals who’d reviewed Kacsmaryk’s ruling scoffed at the Justice Department’s stance “that the Comstock Act does not mean what it says it means.” Briefs filed Monday at the 5th Circuit by 23 states controlled by Democrats, and by 50 senators and 203 House members, all Democrats, assert that Kacsmaryk got it utterly wrong.
“What if Pat Buchanan wins the presidency?” he warned. “Zealous prosecutors…might well use the new law to harass people who are pro-choice.”
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