How an old, anti-porn law could be used to end medication abortion

A Civil War-era law is quickly becoming a vehicle for conservatives to try to end medication abortion — and perhaps all abortion in the United States.

When a federal judge in Texas with antiabortion views took the unprecedented step this month of ruling against the federal government’s approval of a pill used in abortions, he cited the 1873 Comstock Act to make some of his case.

Soon, the Supreme Court could weigh in on this little-known law and how it affects abortion rights in America. Here’s what to know about it.

The Comstock Act is a federal law that originally prohibited the mailing of birth control, “lewd” or “obscene” material, and anything intended for abortion.

It was championed by a religious activist, Anthony Comstock, who said the nation after the Civil War was too obsessed with sex. “He had trouble finding men of similar religious thinking. And so that was when he decided to do something about it,” author Amy Sohn told NPR. She wrote about Comstock in her book “The Man Who Hated Women.”

After the law went into effect, prominent feminists were arrested as they advocated for birth control. Today the law is still on the books, but Congress and the courts have whittled away at some of its harsher elements, and it’s been largely unenforced for nearly a century. In the 1970s, for example, Congress amended the law to say birth control could be mailed.

Up until a few years ago, the Comstock Act was not part of the abortion debate. It popped up in an abortion case in Mississippi in 2020, and that was the first time that Laurie Sobel, an expert on women’s health policy at the nonpartisan Kaiser Family Foundation, had heard of it. “It seemed like this was a new wrinkle in terms of abortion litigation,” she said.

But when the conservative group Alliance Defending Freedom sued to suspend Food and Drug Administration approval of the abortion pill mifepristone, it pulled up the 150-year-old law to bolster its arguments. Then, when Texas judge Matthew J. Kacsmaryk ruled against the abortion pill this month, he also cited Comstock.

If the law says you can’t mail anything to do with abortion, then the first pill commonly used in medication abortion, mifepristone, can’t be mailed to patients, he argued. So even if the Food and Drug Administration had correctly approved abortion medication, he argued, it’s illegal to mail it.

The Biden administration immediately appealed his decision, arguing that the law technically only bans people from knowingly mailing the medication where abortion is illegal. It shouldn’t preclude a doctor from prescribing a pill to a patient via telehealth in a state where abortion is legal, for example.

We’re talking about mailing pills so much because the Biden administration recently lifted regulations around receiving abortion pills in the mail. After the Supreme Court ended federal abortion protections by overturning Roe v. Wade, mailing pills — and medication abortion in general — became a target for antiabortion advocates, who thought that was harder to police than just shutting down clinics.

A higher court — an appeals court in Louisiana known for its conservative lean — said the pill can remain authorized by the FDA to use very early in pregnancy. But the judges upheld Kacsmaryk’s reasoning on the Comstock Act and agreed the law says it’s illegal to mail the pill to patients.

For now, abortion pills are still available because the Supreme Court paused these rulings from going into effect. But the court is being asked to weigh in on the abortion pill lawsuit, and it’s expected to respond by Saturday. It’s unclear how much, if at all, the court will weigh in on the Comstock Act.

The Comstock Act is broad. At the time it was written, there wasn’t a commonly-used two-pill regime for abortion. But the act states that it’s illegal to mail pretty much anything used in an abortion: “every article or thing designed, adapted, or intended for producing abortion.”

The Justice Department has argued that no one takes the law literally anymore.

“Over the course of the last century, the Judiciary, Congress, and USPS have all settled upon an understanding … that [the Comstock Act] is narrower than a literal reading might suggest,” Justice Department lawyers argued in an opinion in December. As far as the government can tell, no one has been prosecuted under the Comstock Act for receiving birth control or abortion pills in the mail, they said.

But conservative judges have been willing to apply the Comstock Act to the letter when it comes to whether abortion pills can be mailed. So could they extend their reading of it to ban other tools used in abortion procedures? And what might those be? “If you read the law literally,” said Sobel, the expert with Kaiser Family Foundation, “I don’t know what parameters you could put around it.”

Legal expert Mary Ziegler argued in a recent interview with Slate that the right is trying to get the Supreme Court to weigh in on Comstock to ban all abortions. “The Comstock Act, it turned out, they argued, actually banned all abortions, because, they suggested, that every single abortion in the United States, surgical or medical, requires something that comes in the mail,” she said.

Antiabortion advocates have so far been more successful in the courts than Congress, where Republican politicians have started to become skittish about pushing a national abortion ban.

It’s not clear where the courts will end up on abortion pills, but it does seem that the Comstock Act is suddenly a major player in the debate.

This has been updated with the latest news.