Anti-abortion advocates are trying to revive the long-dormant 1873 Comstock Act, which banned the mailing of anything related to abortion or contraception, in a lawsuit about mifepristone, an abortion-inducing drug.
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Now, with Roe off the table, anti-abortion groups want Kacsmaryk to affirm that Comstock is good law and can be applied broadly, not just to unlawful abortions, as the Department of Justice under President Joe Biden has posited., will take steps to revive this “zombie law.” If he did, his ruling would apply only to the parties — the FDA and a manufacturer of mifepristone that has joined the suit — but it would open the floodgates for future litigation.
At its widest interpretation, the Comstock Act could prohibit mailing abortion-inducing medications, like mifepristone and misoprostol, but also “operating room tables and speculum and suction cannulas and every instrument used in an abortion,” said Cohen. The law’s “design, in our opinion, was not to prevent the importation, sale, or carriage by mail of things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well being of their patients,” the 2nd U.S. Circuit Court of Appeals wrote in a“The word ‘unlawful’ would make this clear,” the ruling said, “and the courts have read an exemption into the act covering such articles even where the word ‘unlawful’ is not used.
There are only a handful of rulings parsing the law, most from the early 1900s, and none before the U.S. Supreme Court, in part because it was unenforced and thus unchallenged for so long. But lawyers have used this lawsuit as a way “of sneaking Comstock in through the back door,” said Greer Donley, a law professor who studies the FDA and abortion law at the University of Pittsburgh.
“Therefore, even when a sender or deliverer of mifepristone or misoprostol, including USPS, knows that a package contains such drugs — or indeed that they will be used to facilitate an abortion — such knowledge alone is not a sufficient basis for concluding that [the law] has been violated.”
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