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An 1873 law banned the mailing of boxing photos. Could it block abortion pills too?

Credit: iStock

by Jennifer Shutt, Georgia Recorder
April 4, 2024

WASHINGTON — An anti-obscenity law enacted in 1873 that hasn’t been enforced in decades shot to the forefront of the nation’s abortion debate in the past week thanks to two U.S. Supreme Court justices, amid expectations a future Republican president would use the law to order a nationwide ban on medication abortion.

The Comstock Act, which prohibited the mailing of anatomy textbooks and boxing photographs as well as contraceptives, drew fresh attention after Justices Samuel Alito and Clarence Thomas during March 26 oral arguments seemed to suggest the law would block the mailing of mifepristone.

Legal experts and a medical historian interviewed by States Newsroom said enforcing the law would be possible since it’s still on the books. But one legal expert noted it may be challenging to prosecute only the sections on abortion while ignoring those that bar sending anything deemed to have an “indecent or immoral use.”

The law, they said, also stems from a time when medical understanding and terminology around pregnancy was vastly different than today, though that’s unlikely to deter those who see the Comstock Act as a path to curtailing or ending abortion access.

Trying to fend off any possibility, a few Democrats in Congress hope to repeal the statute ahead of another Republican presidency — a difficult task amid divided government.

Sarah​​​​ Perry, senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies at the conservative-leaning Heritage Foundation, said a future Republican attorney general could prosecute any manufacturer that ships mifepristone through the U.S. Postal Service — or a private company contracting with USPS.

“The reason we don’t see more involvement with Comstock in federal litigation is simply because you have to have a Department of Justice with the political will to actually go out and to enforce it, and to charge people with those types of violations,” Perry said.

Abortion medication suit

Mifepristone is one of two pharmaceuticals used in medication abortions, which are currently FDA-approved for use up to 10 weeks gestation. The two-drug regimen accounts for about 63% of abortions nationwide, according to a report from the Guttmacher Institute.

The pharmaceutical is at the center of a case before the U.S. Supreme Court. Months of litigation began when anti-abortion medical organizations filed a lawsuit in November 2022 asking the federal courts to either severely restrict or end access to the drug.

The Comstock Act bars more than just sending abortion pharmaceuticals and reigniting enforcement of its various provisions could be complicated, according to Mary Ziegler, Martin Luther King Jr. professor of law at UC Davis School of Law.

“If you look at the statute, very few words in it are about abortion. Almost all of it is about stuff having to do with sex,” Ziegler said. “So if you’re going to revive the Comstock Act, that’s part of the Pandora’s Box you’re opening.”

The first line of the law, for example, bans mailing “Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.”

One of the lines addressing abortion says the statute bans mailing “Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use.”

Ziegler said she wasn’t sure how a court today would interpret what would be “for any indecent or immoral use.”

The lawmakers in Congress who voted to approve the Comstock Act, which was enacted less than a decade after the end of the Civil War, weren’t especially concerned with “protecting fetal life or rights,” Ziegler said.

“It was really about sex, and abortion came into it the same way contraception did,” she said. “And the people who passed the law didn’t really distinguish the two.”

Anthony Comstock, who advocated for the law, used to call “people who sold contraceptives, abortionists, even though they didn’t perform abortions, because to him there really wasn’t much of a difference,” Ziegler said.

The law’s full title is “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.”

Differences in legal interpretations

While the Biden administration has issued a legal opinion saying the Comstock Act doesn’t apply when the “sender lacks the intent that the recipient of the drugs will use them unlawfully,” a future GOP president and the legal teams within that administration could feel quite differently. Former President Donald Trump has clinched the Republican presidential nomination.

The Biden administration’s legal interpretation of the Comstock Act, Perry said, “doesn’t really pass the straight face test, particularly the plain reading of the text itself for which ‘intent’ does not appear.”

Perry and Thomas Jipping, a fellow Heritage Foundation senior legal fellow, wrote in a February 2023 report that the Biden Administration’s Office of Legal Counsel’s opinion “wants Americans to believe that a law enacted as part of the national pro-life legislative movement and championed by an aggressive and uncompromising anti-vice crusader is today, with no change in its language, entirely unenforceable for its intended purpose.”

“The OLC wants Americans to ignore what they can read for themselves, that the statute has clear and unqualified language, and that Congress repeatedly demonstrated its intention to keep it that way,” the two wrote. “The OLC wants Americans to believe that while enacting the Comstock Act required Congress to act, rendering it inert and unenforceable could be accomplished by Congress failing to act at all.”

A Republican-controlled Justice Department could bring charges against the manufacturers of mifepristone unless those companies used entirely private transportation companies, Perry said.

“If they were seeking a private driver to deliver or a private delivery service to deliver, that’s legally permissible, but they cannot use the U.S. Postal Service or any common carrier that contracts with the U.S. Postal Service,” Perry said.

Some legal experts or judges could interpret the law as having a wider reach, Ziegler said.

“The statute’s written to be really broad,” she said. “So it’s not obvious to me that if you used a private carrier that it would be exempted. Again, if you assume the interpretation of the law that they have, which I don’t, but if you do, I don’t think it makes a difference if you have a private carrier.”

In that case, the law could mean no medication abortion at all as well as enforcement of the Comstock Act’s other provisions, Ziegler said.

The law was used in federal prosecution as recently as 2002, but that was for “obscene or lewd materials,” not for the mailing of anything having to do with abortions, Perry said.

Enforcement of the abortion sections of the law wasn’t allowed after the Supreme Court ruled that abortion was a constitutional right in the 1973 Roe v. Wade case, but that all changed two years ago when the court overturned that opinion, Perry said.

“The law essentially laid dormant for many years because of course in 1971 the birth control prohibition was eliminated and then in 1973 we were given Roe,” Perry said.

“So for all intents and purposes, the Supreme Court finding a right to abortion superseded what the Comstock Act actually said, because if there was an unfettered right to abortion, then there could not be congressional restriction on any tool, medication, or implement used to facilitate abortion,” said Perry.

The court’s ruling in Dobbs v. Jackson Women’s Health Organization could lead to “renewed interest” in enforcing the Comstock Act, including comments made just last week by the two Supreme Court justices, she said.

What the justices said

Thomas and Alito brought up the Comstock Act during a case that will determine whether access to mifepristone stays the way it is now or reverts to what was in place before 2016.

Thomas asked the attorney representing Danco Laboratories LLC, manufacturer of the brand name of mifepristone called Mifeprex, if the Comstock Act applied to the company.

“The government, the solicitor general points out, would not be susceptible to a Comstock Act problem,” Thomas said. “But in your case, you would be, so how do you respond to an argument that mailing your product and advertising it, would violate the Comstock Act?”

Thomas said that his “problem” with aspects of the case was that Danco Laboratories is “private, and the statute doesn’t have the sort of safe harbor that you’re suggesting.”

“It is fairly broad and it specifically covers drugs such as yours,” Thomas said.

Danco lawyer Jessica Ellsworth responded that she disagreed that was “the correct interpretation of the statute.”

“We think that in order to address the correct interpretation, there would need to be a situation in which that issue was actually teed up,” Ellsworth said. “I don’t believe that this case presents an opportunity for this court to opine on the reach of the statute.”

Alito appeared to argue that the U.S. Food and Drug Administration should have considered the Comstock Act before relaxing previous restrictions on use, allowing mifepristone to be prescribed via telehealth and sent to patients through the mail.

“It didn’t say anything about it. And this is a prominent provision,” Alito said. “It’s not some obscure subsection of a complicated obscure law. They knew about it. Everybody in this field knew about it.”

Calls for repeal by Congress

Following the comments by the two justices, U.S. Rep. Cori Bush, D-Mo., immediately called on Congress to repeal the law, a scenario that’s unlikely to happen given that Republicans control the U.S. House and Democrats the Senate.

“Enacted in 1873, it is a zombie statute, a dead law that the far-right is trying to reanimate,” Bush wrote on social media. “The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban. Not on our watch.”

Minnesota Democratic Sen. Tina Smith wrote in an op-ed published by The New York Times on April 2 that she would work with her colleagues to repeal the law, saying that neither the Supreme Court nor another Trump administration should be allowed to rely on it to ban access to medication abortion.

“Very few Republicans will admit to wanting to see a total, no-exceptions ban on abortion in all 50 states, but the Comstock Act could allow them to achieve that in effect, if not in so many words,” Smith wrote. “Americans deserve better. The Constitution demands better. And common sense dictates that we stop this outrageous backdoor ploy to eliminate abortion access in its tracks.”

Comstock Act origins

Ziegler said that “the Comstock Act passed at a time when the meaning of obscene was up for grabs” and that its namesake, Anthony Comstock, “was really anxious about people’s exposure to what he saw as pornography.”

Some of the prohibited items under the anti-obscenity law were things people today would still think of as pornography, but Comstock also didn’t approve of nudity in medical textbooks or art, literature with “risque humor,” or newspaper articles about people who died as the result of illegal abortions.

“He thought all of that was encouraging people to have sex they shouldn’t be having, either by being arousing or in the case of abortion or contraception, convincing them that they could have sex without pregnancy,” Ziegler said.

At various points in the law’s history, Ziegler said, it was used to target people discussing LGBTQ rights and against opponents of the law in a way that basically silenced political speech.

Even though it hasn’t been used in quite some time, Ziegler said, “it’s a very real possibility” a future Republican DOJ could seek to enforce the law with respect to abortion access.

“The only caveat, of course, is if that happened, the person being prosecuted would be right back in federal court saying, ‘Number one, this is not what the Comstock Act means and number two, the Comstock Act is unconstitutional,’” Ziegler said. “So the U.S. Supreme Court would eventually have to settle those questions.”

One question for the justices will have to be what the word abortion meant in the late 19th century.

“If you look at what the law in general said at the time, procuring abortion was only a problem if it was done intentionally, and if it was done with basically criminal intent, which excluded cases where someone’s life was at risk or health was at risk,” Ziegler said.

19th-century terminology

Mary Fissell, inaugural J. Mario Molina professor in the history of medicine at Johns Hopkins University and vice president of the American Association for the History of Medicine, said during the 19th century around the time the law was written the terms abortion and miscarriage were often used interchangeably and typically meant the same thing.

“Both of those terms describe a pregnancy that ended sooner than it should have done and did not result in what we would call a live birth,” Fissell said.

People and organizations that wanted to outlaw pregnancy termination often used the term “feticide,” as in fetal homicide, to advocate for laws banning or significantly restricting the practice, Fissell said.

“Doctors start calling it criminal abortion, to distinguish it from everyday abortion, which is just fetal loss,” she said. “And so it’s over time that these terms come to mean, sort of separate things. At that point, they are very much just used interchangeably.”

The way women and most doctors understood pregnancy more than 150 years ago was before and after “quickening,” the first time a woman felt the fetus move, which is typically sometime in the middle of the second trimester, Fissell said.

“Before quickening, ending a pregnancy was not a big deal. It was not even fully always understood as ending a pregnancy,” Fissell said. “I think sometimes that’s what a woman knew she was doing. Other times she was getting back a lost menstrual cycle.”

In the late 19th century many physicians practiced what’s now referred to as humoral medicine, in which they believed the body contained four humors or fluids that needed to be kept in balance in order for a person to stay healthy.

They believed the body contained black bile, yellow bile, blood and phlegm and that those four substances corresponded to being either hot or cold as well as wet or dry.

“Women’s bodies were cooler and wetter than men’s,” Fissell said of medical beliefs around that time. “That’s good because, they thought of it as analogous to agriculture, and a seed was planted in the womb. And we all know what happens if you plant a seed somewhere that’s too hot and dry. It doesn’t go well.”

“So it was good that women were cooler and wetter, but it meant they didn’t fully process their food in the same way,” she added, again referring to beliefs at the time. “And the excess, the leftover, had to be gotten rid of from the body and that was what menstruation was.”

Doctors and others at the time often sold products that were designed to help women get a regular period, including herbal combinations. But there are significant differences between how that was thought of around 1873 and now, Fissell said.

“From a long time before that, there had been a blurring between what we call contraception and abortion,” Fissell said. “It doesn’t make sense to us, but in their worldview, they were more connected in part because the same kind of plant that you might take to get your cycle back, you could also be ending a pregnancy.”

“So, you can imagine some of those same preparations that women were advised to take every month, and you won’t get pregnant,” she added. “We would biochemically analyze it very differently than the way they were understanding it.”

Fissell said that around the time the Comstock Act was written, women and doctors — not typically male lawmakers — held the knowledge about menstrual cycles and pregnancy. “I think the extent of ignorance cannot be overestimated.”

Georgia Recorder is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence.

This story is republished from Georgia Recorder under a Creative Commons license. Read the original story.

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