Comstock Act revived in FDA abortion drug case

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In an Amarillo courthouse last week, lawyers seeking to move abortion medication off the market focused less on the existential question of when life begins — and more on the procedural question of when a law dies.

The lawsuit focuses on the Food and Drug Administration’s approval of mifepristone, an abortion-inducing drug. But lawyers for the Alliance Defending Freedom took the opportunity to appeal to a higher power — U.S. District Judge Matthew Kacsmaryk — to resurrect a long-dormant law that would upend abortion access in the United States.

The Comstock Act of 1873 banned the mailing of anything related to contraception or abortion. The contraception clauses were removed in 1971, and the law was entirely unenforced during the five-decade reign of Roe v. Wade.

Now, with Roe off the table, anti-abortion groups want Kacsmaryk to affirm that Comstock is good law and can be applied broadly, not just to unlawful abortions, as the Department of Justice under President Joe Biden has posited.

It’s unclear whether Kacsmaryk, an anti-abortion appointee of former President Donald Trump, will take steps to revive this “zombie law.” If he did, his ruling would apply only to the parties — the FDA and a manufacturer of mifepristone that has joined the suit — but it would open the floodgates for future litigation.

“Comstock is part of this sort of stealth strategy to ban abortion nationwide,” said David Cohen, a law professor at Drexel University. “If it’s illegal nationally to mail … anything that is related to abortion, that would make it very difficult to operate an abortion clinic or to be an abortion provider.”

The ghost of Anthony Comstock

In the late 1800s, a man named Anthony Comstock moved to New York City, where he saw drinking, smoking and carousing. Women were selling sex, book stores were selling smut, and Comstock wouldn’t stand for it.

Comstock helped found the New York Society for the Suppression of Vice, which worked to ban obscene books, and then turned his focus to mail-order contraception and abortion. In 1873, he convinced Congress to pass an anti-obscenity law nicknamed the “Comstock Act.”

The law initially outlawed the mailing of any “obscene, lewd or lascivious” writings; anything intended to prevent pregnancy; and “every article or thing designed, adapted or intended for producing abortion.”

At its widest interpretation, the Comstock Act could prohibit mailing abortion-inducing medications, like mifepristone and misoprostol, but also “operating room tables and speculum and suction cannulas and every instrument used in an abortion,” said Cohen.

In the decades after Comstock passed, courts began to grapple with the potentially wide-ranging implications of this law.

“Part of what the court rulings have said … is that we just can’t read [the law] this broadly, because it would mean nothing is legal,” Cohen said.

Most of the court rulings focused on contraception, reading Comstock narrowly to apply only when someone “knowingly” mailed something that would be used in violation of existing laws on abortion or contraception.

The law’s “design, in our opinion, was not to prevent the importation, sale, or carriage by mail of things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well being of their patients,” the 2nd U.S. Circuit Court of Appeals wrote in a 1936 ruling about the mailing of contraception.

“The word ‘unlawful’ would make this clear,” the ruling said, “and the courts have read an exemption into the act covering such articles even where the word ‘unlawful’ is not used.”

Congress amended the Comstock Act several times, including to remove the restrictions on mailing contraception in 1971. But lawmakers left the abortion aspects of the law and did not take the step to specifically carve out exceptions for lawful procedures.

Ed Whelan, a senior fellow and former president of the conservative Ethics and Public Policy Center, argued in an amicus brief that Congress had a chance in 1978 to clarify that Comstock applied only to unlawful abortions but declined to do so, in part because the courts had not been clear.

“It would of course have been impossible for Congress to ratify a ‘consensus interpretation’ that never existed,” Whelan wrote.

There are only a handful of rulings parsing the law, most from the early 1900s, and none before the U.S. Supreme Court, in part because it was unenforced and thus unchallenged for so long.

But while the law remained stagnant, the world of abortion changed significantly — from home remedies and herbal concoctions to a small packet of FDA-approved pills that can be mailed around the world at a moment’s notice.

Comstock, post-Roe

The Comstock Act was essentially dormant for the entire lifespan of Roe v. Wade, nearly five decades during which the law was on the books but entirely unprosecuted. But then came June 24, 2022.

Suddenly, everything old was new again, as anti-abortion groups began working several angles to argue that Comstock is back in effect. Wednesday’s hearing in Amarillo was one of the first airings of Comstock arguments in federal court in almost a century.

The lawsuit is only tenuously connected to the issue of mailing medication. The original complaint focuses on whether the FDA erred in approving mifepristone in 2000 and subsequently relaxing restrictions on the drug.

But lawyers have used this lawsuit as a way “of sneaking Comstock in through the back door,” said Greer Donley, a law professor who studies the FDA and abortion law at the University of Pittsburgh.

“The Comstock law is something the anti-abortion movement has become attuned to wanting to bring back to life in a variety of contexts,” Donley said. “So we’re going to see this statute come out in a variety of arguments moving forward.”

At the center of Wednesday’s debate was a December memo from the Biden administration, proactively affirming that U.S. Postal Service will not use Comstock to block or prosecute the mailing of abortion-inducing medication.

The opinion from the DOJ’s Office of Legal Counsel noted that these medications can be used for purposes other than abortion and that all states still allow abortion to save the life of a pregnant patient.

Someone sending these drugs through the mail “typically will lack complete knowledge” of whether the drugs are being used lawfully, the memo reads.

“Therefore, even when a sender or deliverer of mifepristone or misoprostol, including USPS, knows that a package contains such drugs — or indeed that they will be used to facilitate an abortion — such knowledge alone is not a sufficient basis for concluding that [the law] has been violated.”

Erin Morrow Hawley, an attorney for Alliance Defending Freedom, argued Wednesday that the federal government does not have discretion to ignore the law the way it is written and disputed that federal courts have reached any kind of consensus around the applicability of the law.

Nothing in the text of the law says it only applies to “unlawful” abortions, Hawley said, calling this “bread-and-butter statutory interpretation.”

The Alliance Defending Freedom argued the FDA’s lifting of the in-person dispensing requirements, which previously required doctors to give the medication to patients in person, could be grounds for reviewing the drug’s approval.

Daniel Schwei, a lawyer representing the FDA, seemed confounded by Hawley raising Comstock arguments in a lawsuit concerning drug approvals. Whether a drug can be legally mailed has no bearing on the FDA’s assessment of whether it is safe and effective, he argued, and Comstock was unenforceable when mifepristone was being approved and modified.

It is “unfounded,” Schwei said, to argue that FDA was required to consider a then-unconstitutional requirement when approving the drug.

Jessica Ellsworth, a lawyer for Danco, the pharmaceutical company that manufactures generic mifepristone, argued the FDA would actually be overstepping its authority if it weighed Comstock in approving the drug.

Citing an amicus brief signed by 22 states, including Texas, Hawley argued that allowing abortion medication to be freely shipped is an “affront to the states” that have banned the procedure.

In addition to banning abortion except to save the life of a pregnant patient, Texas additionally prohibits mailing abortion-inducing medication.

Any ruling from Kacsmaryk is only binding on the FDA and Danco as defendants in the lawsuit. Even a ruling that revived Comstock wouldn’t stop other pharmaceutical companies from continuing to mail the medication, as long as it remained approved by the FDA.

But it would be a significant step toward bringing this zombie law back to life.

“It would invite other lawsuits, which I’m sure are being cooked up right now,” Donley said, “where they would be able to make a more traditional Comstock argument and be able to rely on this decision and say a federal judge has already declared this is good law again.”

“Now, that doesn’t mean other judges are going to agree with that,” she said.

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