This Week in Abortion: Comstock, The Act

Your weekly roundup of good reads, legal updates, and legislative tracking on abortion.

Welcome back to your weekly roundup of good reads, legal updates, and legislative tracking on abortion. Following-up from last week, the feature this week is a primer on the other major existing federal law that impacts the current abortion conversations: The Comstock Act.

“Good” Reads (and listens)

• This article explains why some states and clinics are losing federal funds for women’s healthcare in the name of preventing abortions (written by Rachana Pradhan). 

  • Title X, a federal program for family planning, requires that participating organizations provide women with access to information on abortion and referrals.

  • In states with bans, this rule can be impossible to meet. It’s led to whole states - like Tennessee - losing funds.

• We like this Kansas Op-ed from Michael Smith, a supporter of access and a Christian. Even now, anti-access advocates seem to own the pedestal of moral righteousness. Op-eds like this help to reframe the debate. More please!

• If Texas Judge Kacsmaryk keeps invading your brain space, Ivan Millhiser (Vox) has the answer and more about upcoming cases in Kacsmaryk’s court. According to Millhiser, “under a local order governing case assignments…all lawsuits filed in Amarillo, Texas, are automatically assigned to Kacsmaryk.” 

• For our podcast-lovers, the NYTimes’ “The Runup” episode this week is about abortion politics. We have not had a chance to listen yet but it seems intriguing.

  State and Local Events of the Week

• 👎Two anti-access protestors were attacked outside a Planned Parenthood in Maryland. 

  • It’s hard not to make snide comments here because in general the violence is so clearly concentrated against pro-access. But, it’s not good on either side. 

  • While infuriating, we also encourage a read of some of the anti-access coverage of this incident with an eye for the “nonviolent” aggression - protestors praying daily and giving “gifts” to women trying to get into a healthcare facility.

• 👎A seventh New Mexico city is contemplating banning abortions. The state has become a hot spot for local governments banning abortion. As you might expect, lawsuits are underway to determine whether these bans are legal.

• 👍 Republican Gov. Joe Lombardo of Nevada signed legislation protecting abortion access for out-of-state patients and providers within the state’s borders. 

  • According to regular procedure, the bill would have become law without his signature so his decision to add his name to the law affirmatively is notable.

• 👍 The Committee to Protect Health Care erected a billboard outside the Orlando airport alerting new arrivals of Florida Governor DeSantis’ abortion stances. We will suspend all opinion and commentary on whether this is good or bad for his presidential bid and just enjoy it…

• 👎 Anti-access advocacy organization Georgia Life Alliance hosted their annual high school oratory competition, which was attended by the Labor Commissioner and several state legislators. The winners receive scholarship funds and are featured on local radio stations. 

  • This type of soft-power strategy is really impactful. We know pro-access advocates are focused on paying for actual abortion services, but we don’t see as much of this in the pro-access space and wish we saw more.

    

Legal Updates

• 👍Oklahoma’s Supreme Court struck down laws that allowed private individuals to sue abortion providers or anyone who helped someone obtain one and limited access even in cases of nonviable pregnancies and for the health of the mother. Although most abortions are still banned in Oklahoma, this ruling prevents incidents like this one in Texas.

• 👍 Local ACLU and Planned Parenthood organizations are suing to block the recent abortion ban passed by Nebraska legislators. We don’t have a ton of hope for this case in the state’s conservative courts, but it’s still a good development.

Feature: The Comstock Act is Coming

Last week we highlighted the Hyde Amendment. There is one other major federal piece of legislation that is probably good to have in your back pocket: The Comstock Act.

What is the Comstock Act?

• The Comstock Act is a federal law from 1873 that prohibited sending anything “obscene, lewd or lascivious,” “immoral,” or “indecent” through the mail. This originally included anything related to contraception, abortifacients (i.e. anything that could be used for abortion), sex toys, sex education materials, etc. 

• In practice, this also meant the US Postal Service had authority to open mail it suspected of fitting into the definition, and over 4,000 people were convicted in what was known as the “Vicecapades”. Yikes. 

  • This law applied to all mail, including pharmaceutical companies mailing wholesale drugs to pharmacies or doctors offices, which was a relatively new thing at that time.

    

    In this letter to the Chief Post Office Inspector, Comstock informs him that someone he had charged with mailing obscene material pled guilty in court and was fined $500. 1984. National Archives, Records of the Post Office Department.

• It is named after Congressman, Anthony Comstock, whose stances on “refortifying American morality” sound very similar to some of the rhetoric we hear today from the far right, rooted in ideas of suppression of women, subservience, homophobia, and lack of education or rights. It is worth noting that even at the time, this law was unpopular and there were attempts to repeal it starting in 1879…Yet, here we are 150 years later.

• Over the years, at least eight major legal challenges hollowed out the main act and after Roe v. Wade, it became irrelevant all together.

Why does it matter now?

The main reasons the Comstock Act is on the radar are medicated abortion and the legal uncertainty around the enforceability of the Act. 

1. Medicated abortion. Since the Dobbs decision abortion has reverted to a state-led issue. Medicated abortion, available via mail, has become a way for women to “circumvent” their local restrictions. Anti-access advocates are now leaning on the Comstock Act as a key tool in their legal kit. While Comstock was hollowed out, none of the previous cases address medicated abortion so it’s not immediately clear how hollow the act is when it comes to this. 

The Texas lawsuit about our friend Mifepristone cites the Comstock Law as a primary argument for the decision, stating “But even if FDA’s explanation were well-reasoned, the actions would still run afoul of the Comstock Act and therefore violate the APA.”

2. Legal uncertainty. The ability to enforce the Comstock Act is murky. Most legal opinions we’ve seen indicate the Act has not been enforced since the 1930s. But this does not seem to be stopping anti-access advocates and companies from using it as leverage.

• The Department of Justice issued a legal memo in December declaring the Comstock Act not applicable to mifepristone. And then in March, conservative Attorneys General sent Walgreens a threatening letter about mailing mifepristone to patients in their states citing the Comstock Act.

• Companies, such as Walgreens, are struggling to navigate this uncertainty. In Walgreens’ response, they did not explicitly say they were not planning to mail mifepristone, just not in the states who sent the letter. Does this mean Walgreens believed the Comstock Act would be enforceable in certain states? If you’re Walgreens, we’d love to hear from you ;) 

The Supreme Court has never weighed in on the constitutionality of the Comstock Act directly. We’ve seen from the Dobbs decision that Supreme Court precedent may be less meaningful today than in the past. Harvard’s Maya Sen has an interesting piece on the conservative shift of the court. 

A few years ago, we’d have brushed this hubbub off as unnecessary riling to get people angry. But today, we can’t be certain the eight previous rulings that removed the power of the Act would still hold.  

How worried should we be?

There’s no easy answer but we think moderately. We do expect it will be part of the anti-access strategies until a decision is made on enforceability.

• We don’t expect any large-scale (or even small-scale) repeals in today’s Congress. The last time anything was attempted was 1996 and the measure failed (though Rep. Schroeder’s speech is a good read).

• We do expect more lawsuits to emerge challenging the Comstock Act, and using it as leverage. 

  • More modern privacy laws are in stark contrast to the provisions in the Comstock Act (looking at you Griswold vs. Connecticut). We would expect savvy pro-access/pro-privacy lawyers to be filing cases, but we haven’t come across much in the public sphere yet. 

  • We are seeing anti-access local municipalities suing pro-access state governments citing the Comstock Act (see Eunice, New Mexico).

  • The Comstock Act is appearing in “unusual” places, such as the case where an ex-husband is suing his wife’s friends in Texas for helping her obtain an abortion. The lawyers claim the distributor is also liable for mailing the pills in violation of the Comstock Act.

If the Supreme Court were to find the Comstock Law enforceable, it would open up a new batch of questions that go beyond abortion: Would manufacturers be able to mail pills to hospitals or pharmacies with legal abortion? What about other medical equipment that is used as part of legal abortions? How would the delineation between healthcare and “lewd” be defined? Would it be ok to mail medication to treat genital warts or HIV? 

As many things in life, diving into the Comstock Act brings up more questions than answers. But now you are hopefully more informed when you hear it in the news!