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(52,103 posts)
Fri Jun 14, 2024, 12:54 AM Jun 14

Mifepristone Is Safe for Now--but Comstock Is Waiting in the Wings [View all]



However, much as I hate to be the bearer of bad news, the legal battle over medication abortion is far from over. Even this specific case still has legs. That’s because Kacsmaryk granted Idaho, Kansas, and Missouri permission to intervene in the case. The Supreme Court’s ruling leaves open the possibility that the case ends up back in Kacsmaryk’s court, where these three states could revive it.

An easy path to a total national abortion ban

An undead case would be awfully fitting, because the real goal behind FDA v. AHM was to resurrect an undead law: the Comstock Act, an 1873 anti-obscenity law that remains on the books today.

Named for anti-vice crusader Anthony Comstock, the Comstock Act banned the mailing of “obscene” materials, including anything used “for the prevention of conception, or for causing unlawful abortion.” Anti-abortion leaders—especially lawyers like Texas SB 8 architect Jonathan Mitchell and Project 2025 abortion policy lead (and former Trump Department of Health and Human Services official) Roger Severino—are, frankly, obsessed with the Comstock Act.

That’s because, in the eyes of these conservative legal strategists, the Comstock Act provides an easy path to a total national ban on abortion and contraception. Think about it: What drug or device used for abortion or contraception hasn’t been shipped at some point? And just in case you thought these restrictions on mail pertain only to the United States Postal Service, think again: The Comstock Act covers items shipped or delivered in any way, which would include today’s UPS, FedEx, and even bike messengers.

All a future president would need to do is to direct their Department of Justice to enforce the Comstock Act and get a conservative Supreme Court to back them up in the event of any legal challenges, and there you have it: A total ban on abortion, contraception, and anything conservatives might deem “obscene”—no congressional action required.

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