Mar 26, 2024 - Politics & Policy

Why a 19th-century law matters in the Supreme Court abortion pill fight

during the "Bans Off Our Mifepristone"

Demonstrators march towards the U.S. Capitol and the Supreme Court on March 26. Photo: Jemal Countess/Getty Images for Women's March

A 19th century law that anti-abortion advocates tout could play a key role in the Supreme Court case on access to abortion medication.

Why it matters: Justices referenced the law, known as the Comstock Act, as they heard oral arguments Tuesday in FDA v. Alliance for Hippocratic Medicine, which could have far-reaching consequences for access to the abortion pill mifepristone.

The big picture: The Food and Drug Administration approved mifepristone for use back in 2000.

  • Since 2016, the FDA has taken steps to expand access to the medication, by expanding the timeline during which it can be taken and allowing patients to get it by mail.
  • At issue before the court is whether the FDA erred in permitting expanded access. By reimposing those restrictions, the court could further limit abortion access after it overturned Roe v. Wade nearly two years ago.
  • Medication abortions accounted for 63% of all U.S. abortions in 2023, the highest share on record, according to the Guttmacher Institute, a research organization that support abortion rights.

What is the Comstock Act?

The 1873 Comstock Act banned the mailing of materials that were deemed "obscene, lewd, lascivious," which included things like contraception, abortion drugs and pornography.

  • White the law has been narrowed since its inception, the abortion provision has remained in place — though it was not enforced while Roe v. Wade was precedent.
  • Specifically, the Comstock Act declares "every article or thing designed, adapted, or intended for producing abortion" to be "nonmailable."

State of play: When the Dobbs decision ended federal protections for abortion, the Comstock Act became potentially enforceable once again.

  • Some anti-abortion advocates have even argued the Comstock Act could enable the next Republican president to effectively ban most abortions.
  • After the Dobbs decision, the Biden administration released a memo arguing that the Comstock Act doesn't ban the mailing of abortion drugs for lawful purposes.

Why is it relevant to this case?

The current case before the Supreme Court was kickstarted last year when Texas District Judge Matthew Kacsmaryk issued a decision pausing the FDA's 2000 original approval of mifepristone.

  • Kacsmaryk cited the Comstock Act in his ruling, arguing that the law prohibits the mailing of mifepristone.
  • The case currently before the court has been narrowed to focus on the changes the FDA rolled out in recent years to expand access to the drug, which in part revolve around the mailing of abortion drugs.

Catch up quick: The Justice Department moved quickly to appeal Kacsmaryk's ruling.

  • The 5th U.S. Circuit Court of Appeals partly blocked Kacsmaryk's ruling, refuting its bid to undo the FDA's approval but reimposing restrictions the FDA lifted.
  • The Supreme Court temporarily blocked any restrictions from taking effect while challenges to the FDA's authority played out.
  • In August, a three-judge panel at the 5th U.S. Circuit Court of Appeals upheld portions of the previous ruling that limited access to mifepristone.
  • The Justice Department and the maker of mifepristone, Danco Laboratories, asked the Supreme Court in September to review the ruling.

What did the Supreme Court Justices say?

Conservative Supreme Court Justices Samuel Alito and Clarence Thomas both brought up the Comstock Act during Tuesday's hearing.

  • Alito argued that the Comstock Act is a "prominent provision" and not "some obscure subsection of complicated obscure law."
  • Thomas, in questioning a lawyer for Danco Laboratories, noted that the Comstock Act is "fairly broad, and it specifically covers drugs such as yours."

The other side: Solicitor General Elizabeth Prelogar argued Tuesday that the Comstock Act's provisions wouldn't have been factored into the FDA's decision to approve mifepristone.

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