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Zombie Laws

What to Watch for in the Supreme Court’s Mifepristone Ruling

The justices could decide to revive a Victorian-era vice law that bans the mailing of abortion materials entirely.

The Supreme Court of the United States sits in evening light.
Kent Nishimura/Los Angeles Times/Getty Images
The Supreme Court of the United States on April 19, after it bought itself more time to rule on the mifepristone case

In the next 36 hours, the Supreme Court could end access to mifepristone and revive a Victorian-era law used to criminalize abortion. Or it might not—or not yet.

This was originally supposed to be decided midweek. But in an order published Wednesday, Justice Samuel Alito extended a temporary hold on a lower court’s decision, allowing the Food and Drug Administration’s current regulations on mifepristone access to stand through Friday 11:59 p.m., until the court issues a ruling. And that has abortion rights groups worried: Given the extension, and the documents filed Tuesday to this anti-abortion-leaning court by anti-abortion groups, some fear that the court is preparing to make a big ruling—not a narrow, wonky judgment on the administrative law that allows the FDA to regulate medicine but instead giving new life to a nineteenth-century law, the Comstock Act, that could open the door to a federal abortion ban, perhaps at last upending the many still-stubbornly-held assumptions about how guaranteed reproductive rights are in this country.

In theory, the court was asked to do something very narrow: The Department of Justice appealed to the Supreme Court last week, asking it to put a pair of lower court rulings that would restrict the prescription of mifepristone on hold. The Supreme Court did this, maintaining mifepristone’s current FDA-approved access while DOJ defended that access from a group of physicians seeking to overturn the FDA’s guidelines. That group spuriously claims that someday, one of its patients may be harmed by a drug that has been on the market in the United States for 23 years.

This case purports to be about the FDA and administrative law. But it’s really about the end game: banning abortion entirely. The attorneys representing the group of physicians trying to overturn the FDA guidelines and bar access to mifepristone hail from the ubiquitous Christian conservative law group Alliance Defending Freedom, or ADF. Among those attorneys is Erin Hawley, former clerk for Justice John Roberts, ADF senior counsel, and vice president of its “Center for Life and Regulatory Practice.” (She’s also married to Missouri Republican Senator Josh Hawley.) ADF spent years working to overturn Roe—and Hawley has said she worked on strategy in the Dobbs case—along with fighting anti-discrimination laws meant to protect LGBTQ people (such as ADF’s work in the Masterpiece Cakeshop and R.G. and R.R. Funeral Homes cases before the Supreme Court).

ADF hailed the Supreme Court’s Dobbs decision, overturning Roe v. Wade, as one that returned the “question” of criminalizing abortion to the states. In other words, it framed this as a victory for states’ rights. But this new case, which started in Texas as Alliance for Hippocratic Medicine v. the U.S. Food and Drug Administration in November, shows its ambitions were always much greater: This case is the next step in its all-out war on abortion, women’s rights, and reproductive freedom.

The Christian right and anti-abortion groups have been villainizing medication abortion for years; the FDA’s decision to expand access in 2021 only enraged them further. Allowing providers to prescribe mifepristone through telehealth is “death by mail delivered to your doorstep,” claimed Students for Life of America president Kristan Hawkins in 2021. Abortion rights opponents commonly call mifepristone “chemical abortion”—language used in this recent case, including by the judge they sought out to rule on it, Texas federal Judge Matthew Kacsmaryk. On April 7, when Kacsmaryk granted the abortion rights opponents’ request for an injunction in this case, what he was really doing was attempting to overrule the FDA’s approval of mifepristone.

In his ruling, Kacsmaryk also agreed with the abortion rights opponents’ argument—baffling to many people—that under existing federal law, mailing mifepristone was already a crime. Alliance Defending Freedom has cited the Comstock Act, an anti-vice law from 1873, to make this shaky case. The Comstock Act broadly defines “obscene” and “indecent” materials and makes it a crime to send or deliver them by mail. “Every article or thing designed, adapted, or intended for producing abortion” is deemed “unmailable” under the Comstock Act, and subject to fine, imprisonment, or both. When ADF senior counsel Erin Hawley argued the case in Kacsmaryk’s court in March, she raised Comstock numerous times to challenge the FDA’s regulation of mifepristone. “The Comstock Act plainly prohibits the mailing of drugs that are designed, manufactured, or intended for use as abortions,” said Hawley. “We submit that plainly applies to the FDA’s actions here.”

“It is indisputable that chemical abortion drugs are both ‘drug[s]’ and are ‘for producing abortion,’” Kacsmaryk wrote in his ruling, agreeing with Hawley; and that, he reasoned, makes the drugs unlawful to mail. It’s hard to overstate the possible implications of this line of reasoning: Taking this argument to one possible conclusion, attorneys and jurists could claim that any surgical or medical supplies used for abortion are also “nonmailable” under criminal law, jeopardizing the supply chains needed for in-clinic abortions in states where abortion is legal.

This disastrous decision to revive a nineteenth-century obscenity law to limit abortion access is something that, unfortunately, more abortion rights defenders should have seen coming. “The awful reality is, from the moment this case landed in front of Judge Kacsmaryk, it’s been a rigged game all along,” said Senator Ron Wyden in February, calling the district court judge “an anti-abortion zealot who was hand-picked by Donald Trump and the Federalist Society to feign impartiality on the bench and deliver favorable rulings on the cases his fellow right-wing ideologues funnel his way.”

The last two weeks have seen a flurry of activity in this case, competing orders and rulings that come down to this: Kacsmaryk issued an order on April 7 that would overrule the FDA’s mifepristone regulations. The Department of Justice turned to the Fifth Circuit Court of Appeals, asking it to halt Kacsmaryk’s order. On April 12, the Fifth Circuit ruled against DOJ in part, mostly reinstating the more restrictive FDA guidelines from 2016. The Justice Department then appealed to the Supreme Court, requesting it halt the lower courts’ orders so it could continue to fight this case. And now, well, here we are.

The Fifth Circuit’s rationale in overruling the FDA was no less outrageous than that of Kacsmaryk, a group of FDA scholars argued in their own brief in the case. “The orders of the courts below replace FDA’s scientific and medical expertise with the courts’ own interpretations of the scientific evidence. In doing so, they upend the drug regulatory scheme established by Congress and implemented by FDA through regulations, guidance, and practice.”

In asking the Supreme Court to intervene, the Justice Department called Kacsmaryk’s and the Fifth Circuit’s rulings “unprecedented lower court orders countermanding FDA’s scientific judgment,” which risked “unleashing regulatory chaos.”

Should the Supreme Court allow the lower courts’ rulings to take effect, DOJ argued, “harms would be felt throughout the Nation.” By contrast, it argued, ADF had not shown that its clients “will be injured at all, much less irreparably harmed, by maintaining the status quo they left unchallenged for years.”

Now we come to the moment that increased the likelihood of a more substantive ruling on Friday. When the DOJ appealed to the highest court, it asked that if the court were to decide to allow the lower courts’ orders restricting mifepristone access to take effect, the Supreme Court at least move quickly to consider the case itself on its merits. ADF seized this opportunity to advance its broader aim. If the court granted DOJ’s request, ADF wrote in a response filed Tuesday, then it should also consider “whether the Comstock Act’s prohibition against mailing articles ‘intended for producing abortion’ … includes mifepristone.”

Predicting Supreme Court rulings is a dodgy affair. But the court’s decision Wednesday afternoon, following ADF’s Tuesday filing, to extend the stay to April 21, 11:59 p.m., rather than letting the original stay expire Wednesday night, understandably has reproductive rights advocates worried: It is possible the court has asked for more time because it does intend to consider DOJ’s request to expedite the case—as well as ADF’s response that if the court does that, it must consider Comstock. In short, this Supreme Court may be facing a decision either to resurrect Anthony Comstock’s antique law—long suspended in a dangerous state of semi-relevance—in service of his inheritors on the right or to completely seal his tomb at last.

The full name of the law, more commonly known as the Comstock Act of 1873, wears its age on its fraying sleeve: “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.” The law was the personal crusade of Anthony Comstock, an anti-“vice” campaigner who sought to jail people who sold abortion-causing medicines—along with outlawing porn or anything he deemed “obscene,” evicting prostitutes, and shuttering saloons or anywhere else that he claimed carried the threat of “moral degradation” to the American people. Comstock was even appointed as a U.S. postal inspector in service of his signature legal accomplishment.

It would be wrong to cast Comstock as a simple prude. For Comstock, anti-vice crusades were central to maintaining and ensuring the reproduction of white, Protestant Americans—his own “great replacement plan” in the face of immigration. Comstock’s desire to outlaw the “trade” and “circulation” of articles for contraception and abortion is one facet of that eugenic project, and one in which he was far from alone. Rather, it was part of a broader push to use the criminal law to discipline women into compulsory reproduction.

The Comstock Act is sometimes incorrectly presumed a dead letter—an unenforced, forgotten law, an artifact of the nineteenth century. But the federal law inspired a proliferation of mini-Comstocks in state legislatures. Parts of the federal Comstock Act and some of those state Comstock laws, concerning the provision of contraception and defining obscenity, were challenged and overturned in the twentieth century. “A lot of the free speech and privacy that we have, especially sexual privacy, was carved out in the shadow of Comstock, in defiance of it,” as Gillian Frank, a historian of sexuality, gender, and religion told NPR. Yet much of Comstock remains on the books.

ADF has now resurrected Comstock’s fragmented remains to try to gut the FDA’s power over drug policy. “What the Comstock law says is that it is improper to mail things that induce or cause abortions, which is precisely the action the FDA took in 2021 when it permitted the mailing of abortion drugs,” Hawley told NPR this month. This is the one-two move to watch for as the Supreme Court prepares to rule on this case: the revival of a man who saw his crusade against abortion and any “immoral” sex act as fundamental to safeguarding American purity and his hallmark legal victory, now in the hands of his twenty-first-century compatriots advancing their own vision of a Christian nation, a concept inseparable from coercive natalism.

The Comstock forces have advanced on multiple fronts over the last year: activist lawyers pushing “sanctuary city for the unborn” ordinances in New Mexico incorporating the Comstock Act; state attorneys general threatening drugstores with prosecution, citing Comstock, for providing medication abortion; and now, this challenge to mifepristone using Comstock.

The Department of Justice has already argued that Comstock doesn’t apply to this case. Comstock, a recent memorandum from its Office of Legal Counsel states, “does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”

But as long as the Comstock Act remains on the books, this threat will remain. Lawmakers who said they supported abortion rights have let it sit there. President Biden, who has vowed to fight any rulings restricting abortion access, continues to focus his attentions elsewhere, asserting that “the only way to stop those who are committed to taking away women’s rights and freedoms in every state is to elect a Congress who will pass a law restoring Roe versus Wade.”

As right-wing forces gather to reinstate nineteenth-century eugenicist policies, however, it’s increasingly unclear that simply waiting for legislators to restore Roe v. Wade is enough. It’s not a great sign, for instance, that committed pro-choice states are now stockpiling the abortion medication misoprostol—in some cases, ludicrously committing to having a five-year supply of a drug that lasts only two. The only plausible interpretation of this move is that state authorities fear medication abortion supplies are under threat even in pro-choice states. And they wouldn’t be incorrect in that calculation, given the risks posed by Comstock.

In times like these, it is critical to remember that the fate of mifepristone access in the U.S. is not up to the Supreme Court. When it comes to reproductive freedom, as Truthout’s Kelly Hayes has said, “Nothing ends with the law.” Mifepristone, in concert with the drug misoprostol, has allowed people to self-manage their abortions for decades. So long as the pills are manufactured, so long as people are willing to take on what legal risks they may face for using the pills or sending them to others to use, no court can stop them.

Rather than fight to restore Roe, those in Congress who support reproductive rights need to think much bigger—it is the myopic focus on Roe, after all, that caused people to underestimate the risk Comstock presents. What is stopping Democrats from introducing a full repeal of the Comstock Act? No one imagines it would get through Congress. But even getting all the little Comstocks in the Republican Party on record voting against the repeal would mean something. After all, this is not really an administrative law problem; it is a political problem. Alliance Defending Freedom and its other allies on the right know that. The people working both openly and covertly to get mifepristone to people who need it know that too. They need a real indication that someone is willing to take a political risk for them, while they are out there taking potentially criminal risks to keep medication abortion available. Meanwhile, the law and those charged to uphold it are failing at that task.