A law passed 150 years ago that banned the mailing of contraceptives, lewd materials and drugs that induce abortions could provide a pathway for effectively banning abortion nationwide.
The Supreme Court on Friday granted a full stay in a case concerning the Food and Drug Administration's approval of -- and access to -- the widely used abortion pill mifepristone.
A fight over the reach of the law and how it can be deployed is beginning to brew in court. It has also been on the radar of state and local officials. But the the end goal is a GOP-led federal government willing and empowered to wield the law in a way that could make it impossible for abortion providers to operate.
"Now that Roe is gone, the law springs back into life," said Roger Severino, the vice president of domestic policy at the conservative think tank, the Heritage Foundation, who also served as a top civil rights lawyer in the Department of Health and Human Services under the Trump administration. The Supreme Court froze lower court orders that would have curtailed access to a medication abortion drug, but litigation over its use will continue, raising the possibility that the Comstock Act could play a more central role in that case. Depending on how the legal battle plays out, it could empower the Justice Department in a possible future Republican administration to bring prosecutions under the law, which could complicate -- or perhaps even end -- access to abortion.
The Biden administration has adopted a legal posture that takes a narrow view of the law's applicability, arguing that it does not prohibit the mailing of abortion drugs if they're not intended for an unlawful use. The Biden administration, in an internal advisory opinion released by the Justice Department's Office of Legal Counsel, argues that the law does not apply to the mailing of abortion pills if they're not being sent with the intent of unlawful use. The opinion pointed to how 20th century courts had interpreted it narrowly as excluding drugs mailed with legitimate intent.
Several towns, some in New Mexico and elsewhere, have passed local ordinances that cite the Comstock Act and prohibit business within those jurisdictions from shipping or receiving items used for abortions in the mail, as covered by the Comstock Act.
In Texas, the Comstock Act has been raised in a wrongful death lawsuit that a man has filed against friends of his ex-wife who allegedly helped her procure abortion drugs to terminate a pregnancy. The lawsuit claims that the manufacturer of the pills has criminal liability under the law while alleging that criminal liability extends to the two people who are accused of helping the ex-wife procure the pills.
Instead, the plaintiffs are using the Comstock Act to argue that the FDA should have never approved the drug, which has been on the marketplace for nearly 23 years, in the first place.
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