Topline
Supreme Court justices signaled Tuesday they’re unlikely to side with challengers trying to roll back approvals for the abortion drug mifepristone—but comments by conservative justices highlighted another tactic anti-abortion rights advocates could soon take to curb access to the procedure: relying on a long-dormant 19th century law known as the Comstock Act.
Pro-abortion rights activist rally in front of the US Supreme Court on March 26, in Washington, DC.
Key Facts
The Supreme Court heard oral arguments Tuesday on whether mifepristone—one of two drugs used during a medication abortion—should be restricted and barred from being prescribed via telehealth, with justices from both sides of the aisle suggesting they did not believe the challengers had standing to bring the case.
While the Comstock Act was not at direct issue in the case—the federal government argued it’s a separate issue from the Food and Drug Administration’s approval of the drug—Justices Samuel Alito and Clarence Thomas both brought it up during arguments, describing it as a “broad” and “prominent provision” of federal law.
The act, originally passed in 1873, bans the mailing of any “obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance,” including “every article or thing designed, adapted, or intended for producing abortion” and anything “which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.”
Court rulings since the law’s passage have limited how obscenity can be prosecuted and narrowed the scope of the statute—with the Justice Department noting in a December 2022 memo that it regards the law as now only applying to mailing things that would facilitate unlawful abortions—and the act has laid dormant for decades, given that Roe v. Wade long legalized abortion under federal law.
Since it hasn’t been repealed, however, anti-abortion rights advocates have been seizing on the Comstock Act in the wake of the Supreme Court overturning Roe in 2022, with Republican lawmakers writing in a court brief that it bars the mailing of abortion pills and activists reportedly using it as a legal basis to draft plans for former President Donald Trump to ban abortion should he win reelection.
The Heritage Foundation’s Project 2025, which lays out plans for a future Republican administration, calls for banning the mailing of abortion pills under the Comstock Act—but legal experts have noted the law could also be used in a much more sweeping way to bar abortion medications and equipment from being mailed to hospitals or clinics, effectively prohibiting abortion entirely.
What To Watch For
The Supreme Court will rule in the coming months in the medication abortion case, sometime before its term wraps up in late June. The court is unlikely to use the Comstock Act in its ruling, given that it wasn’t at direct issue in the court’s deliberations, but some legal experts and Biden officials cited by The Washington Post speculated Alito and Thomas could write a separate opinion in the case that endorses the federal statute. That could embolden anti-abortion advocates to bring more abortion challenges under the law, which could revive the Comstock Act and expand how it can be used to restrict abortion.
What We Don’t Know
If Democrats will respond. Rep. Cori Bush, D-Mo., became the first lawmaker to call for Congress to repeal the Comstock Act on Tuesday, tweeting the act “must be repealed” because the GOP “wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban.” Before Bush, Sen. Elizabeth Warren, D-Mass, previously told Jezebel Congress had a “responsibility” to act on the Comstock Act if the Supreme Court used it to restrict abortion pills, but didn’t call for it to be repealed immediately. It remains unclear if other lawmakers will follow Bush’s lead and push for the law to be repealed as it now gains more attention.
How Could Trump Use The Comstock Act?
Since the Comstock Act is already federal law, Trump could conceivably use it as the basis for an executive action that bans or restricts abortion on day one of his presidency, without the need for any congressional approval. A Trump-appointed attorney general could also issue guidance authorizing going after abortion providers under the law. “All it takes is an administrative decision from the Department of Justice that they are going to go after people for violating Comstock,” Drexel University law professor David Cohen told BBC News. “The friction involved is very low, other than winning an election.” While the former president has been cagey on his views about abortion and has chastised other Republicans for going too far in endorsing strict bans—given most Americans favor the procedure being legal—both pro- and anti-abortion rights activists cited by The New York Times believe a future President Trump would ultimately listen to advisors and conservative activists who push him to take harsher action.
Surprising Fact
While anti-abortion advocates have been seizing on the Comstock Act, they’re extremely hesitant to actually speak about the law ahead of the November election. Project 2025 materials do not refer to the Comstock Act by name, and lawyer Jonathan Mitchell—who drafted Texas’ controversial SB 8 abortion ban—told the Times that anti-abortion advocates are intentionally being quiet about their plans, given how abortion bans have become a liability for the GOP at the ballot box. “I hope [Trump] doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth,” Mitchell told the Times. “I think the pro-life groups should keep their mouths shut as much as possible until the election.”
Key Background
The Supreme Court overturned Roe v. Wade in June 2022, ending the decades-long federal right to an abortion and spurring GOP-led states across the country to enact abortion bans. Anti-abortion advocates then turned their attention to medication abortion, as abortion pills have grown in popularity given the ease of accessing them, even when patients are in states banning the procedure. The share of abortions in the U.S. that are undertaken using medication—rather than surgically—increased from 53% in 2020 to 63% in 2023, according to the pro-abortion rights Guttmacher Institute, and the pills and increased access to them are attributed as a key reason for why abortion rates have actually gone up since the Supreme Court overturned Roe. In addition to the case that was heard Tuesday before the Supreme Court, which marked its most consequential abortion case since 2022, state lawmakers have also gone after abortion pills through legislation, and Politico reported Wednesday that legislation and court challenges to medication abortion are expected to ramp up regardless of how the high court rules.
Further Reading
