Sonia Suter, George Washington University and Naomi Cahn, University of Virginia

Anti-abortion groups are looking for new ways to wage their battle against abortion rights, eyeing the potential implications of a 150-year-old law, the Comstock Act, that could effectively lead to a nationwide abortion ban.

Congress passed the Comstock Act in 1873, making it a crime to mail or ship any “lewd, lascivious, indecent, filthy or vile article” and anything that “is advertised or described in a manner … for producing abortion.”

There are now legal cases questioning the Food and Drug Administration’s regulation of mifepristone, one of the two drugs used in the standard regimen for medication abortion. If courts find that the FDA has the authority to approve mifepristone for abortion, the Comstock Act could still prevent the pill’s distribution.

As scholars of law and reproductive justice, we have been analyzing potential strategies to use this Victorian-era law to restrict the ability to get an abortion in the U.S.

Read one way, the Comstock Act could prevent mailing mifepristone to a person’s home, regardless of whether this person lives in a state where abortion is legal.

A broader interpretation, advanced by anti-abortion groups in recent months, would mean the Comstock Act applies to the distribution of all drugs and medical tools used for abortions, not just mifepristone.

The Supreme Court returned the question of abortion rights to states in June 2022. But it’s important to understand that the Comstock Act is a federal law that applies to states, regardless of their approach to abortion.

So while abortion remains legal in certain states, we believe it’s possible that a court could interpret the Comstock Act to prevent the distribution of any tool used for an abortion, anywhere in the U.S.

A 1906 illustration shows Anthony Comstock, center, thwarting excessive displays of flesh, be it a woman, dog or horse.

PhotoQuest/Getty Images

The history of the Comstock Act

Devout Christian and self-described “moral evangelist” Anthony Comstock came up with the idea of what would become the Comstock Act after he felt troubled by the large amount of pornography and alcohol his fellow Union army soldiers consumed.

He lobbied for Congress to pass a law restricting what he deemed lewd behavior, displaying “his impressive collection of pornographic pictures, sex toys and contraceptive materials” in the Capitol building “to help galvanize Congress to pass anti-obscenity legislation.”

Congress then passed the Comstock Act in 1873.

Although prosecutions under the Comstock Act were brought in the early 1900s, enforcement started to wane by the 1930s.

Nonetheless, the Supreme Court has heard the occasional case related to the law over the past 100 years. In 1983, for example, the Supreme Court found that applying the Comstock Act to prohibit mailed advertisements about contraceptives violated the First Amendment.

No court has since ruled decisively to actually enforce the Comstock Act.

Indeed, major court decisions have limited the law’s applicability.

And, in 2022, the Justice Department issued an opinion concluding that the Comstock Act does not prohibit mailing mifepristone if the sender doesn’t know the recipient intends to use those pills “illegally” for abortions – for example, the recipient might be using them to treat a miscarriage.

Applying the Comstock Act today

As anti-abortion rights groups try to reinvigorate the Comstock Act, the question is what the law covers, exactly. Several legal cases are addressing this point in different contexts.

Texas federal court Judge Matthew Kacsmaryk – who issued a preliminary decision on April 7, 2023, effectively rescinding the FDA’s approval of mifepristone – said the Comstock Act prevented the mailing of abortion pills.

When that decision was appealed, the appellate court seemed to agree with Kacsmaryk. It noted that the law does not necessarily require users “of the mails or common interstate carriage to intend that an abortion actually occur,” contrary to the Justice Department’s 2022 opinion. It emphasized, however, that it was “not required to definitively interpret the Comstock Act” because it was not issuing a final ruling.

That decision was then appealed to the Supreme Court, which temporarily upheld the availability of mifepristone and sent the case back to the 5th Circuit Court of Appeals for full review on April 21.

The appellate court will hear oral arguments on May 17 and should issue a more definitive interpretation.

Extending to other lawsuits

The Comstock Act is also at the center of other kinds of litigation and legal campaigns focused on whether people can get abortions.

Jonathan Mitchell, a conservative lawyer and former solicitor general of Texas, is trying to use the Comstock Act to outlaw abortion altogether. Notably he also devised the Texas “bounty-hunter” abortion legislation in 2021 that bans most abortions and “deputizes citizens to sue people involved in the process.”

Since 2019, two counties and more than 60 cities in Texas, Nebraska, Iowa, Ohio, New Mexico, Louisiana and Illinois have passed ordinances that ban abortion. This is part of a political campaign called Sanctuary Cities for the Unborn – orchestrated by Mitchell and conservative pastor Mark Lee Dickson.

Some of these places now prohibit the shipment and receipt of abortion drugs or medical items used for abortions.

These ordinances have led to two lawsuits questioning their legal status.

New Mexico Attorney General Raúl Torrez sued several Sanctuary City towns in January 2023, claiming that the ordinances violated state law that says people have the right to access health care and that physicans’ care of patients is a private matter.

But then the New Mexico city of Eunice, another Sanctuary City, also filed a lawsuit in April 2022, asking a state court to determine that the Comstock Act is enforceable.

Finally, the Comstock Act is being applied even after an abortion has occurred.

In a Texas lawsuit filed in March 2023, Texas resident Marcus Silva sued three women for wrongful death, saying they assisted in “murdering Ms. Silva’s unborn child with illegally obtained abortion pills.” The complaint notes that Silva will also sue the pills’ manufacturer for wrongful death based on the Comstock Act.

An advertisement outside a pharmacists conference in Phoenix advocates for the safety and necessity of mifepristone.

Chris Coduto/Getty Images for UltraViolet

Mailing, distributing or banning?

It seems likely that the high-profile federal FDA mifepristone case in Texas could head back to the Supreme Court after the 5th Circuit issues its ruling. If so, the Supreme Court could determine that the Comstock Act only applies to the mailing of items if the sender knows the items are intended to be used “illegally” for abortions. In that case, little or nothing would change in states where abortion is legal.

Or, the court could decide that the Comstock Act bars mailing mifepristone regardless of its user’s intent, making access to medication abortion more difficult. The court could also cast a wider net, prohibiting the shipping of abortion medication altogether across the U.S.

And if the Comstock Act applies to mifepristone, it could also apply to any other item or tool that is used to terminate a pregnancy. Such a ruling would effectively impose a nationwide ban on abortion, even in states that allow abortions. To achieve this result based on an 1873 Victorian statute would be entirely consistent with Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade based on the state of the law in 1868.

Sonia Suter, Professor of law, George Washington University and Naomi Cahn, Professor of Law, University of Virginia

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The U.S. Supreme Court issued an emergency ruling on April 21, 2023, that allows continued access to the abortion pill mifepristone in states where abortion is legal.

The court’s decision, which included few details and only indicated that Justices Clarence Thomas and Samuel Alito did not concur, follows a whirlwind legal process about whether people should be able to purchase mifepristone, one of two drugs used in a two-dose series for inducing a medical abortion.

On April 7, two federal district court judges halfway across the country from each other issued conflicting rulings about the validity of the Food and Drug Administration’s approval of mifepristone.

Within a week, yet another court issued a third opinion, which allowed mifepristone to continue to be prescribed, but under more limited circumstances. Two days after that, on April 14, the U.S. Supreme Court issued yet a fourth divergent opinion, albeit a temporary one, maintaining that the drug should be kept available while the court considered the most recent emergency ruling.

As scholars of reproductive justice, we have been carefully following these cases to make sense of what they mean for the FDA’s authority to approve drugs – and where that leaves access to medication abortion, which is used in more than half of allabortions today.

One issue that confuses many people is how different courts can rule in contradictory ways.

But in fact, there are many instances when federal courts in one part of the country hand down decisions that conflict with those of other jurisdictions.

The federal system

It’s first useful to understand how the federal court system in the U.S. works. State-run court systems are entirely separate from the federal judicial system, which is where the mifepristone rulings are playing out.

Federal courts handle a variety of issues, including those relating to the United States government, the Constitution or federal laws, or controversies between states or between the U.S. government and foreign governments.

There are 94 federal district courts, organized into 12 regional circuits. The district courts are trial courts, where cases are presented to a judge or jury. Their decisions are bound by the legal doctrine established by their respective circuit courts, which handle appeals of cases from their constituent district courts. All of these courts are bound by Supreme Court decisions.

If there is no prior ruling to establish a precedent on the matter, federal district court judges can issue rulings based on their independent legal judgment. Consequently, district courts in different circuits can end up issuing separate rulings that contradict each other.

It’s relatively common for differences to arise between district courts – or even for different circuit courts to rule differently on appeals in similar cases.

Only the Supreme Court can issue an opinion that binds all circuits. So when there are disagreements between circuit courts, the Supreme Court can step in and make a decision for the whole country.

For example, the 6th Circuit, which serves Kentucky, Ohio, Michigan and Tennessee, upheld same-sex marriage bans in all four states in 2014. By then, four other circuits had reached the opposite result and struck down same-sex marriage bans. This set up, as one commentator explained, an “almost certain review by the Supreme Court,” particularly because this was “an issue of fundamental constitutional significance.”

Until the Supreme Court decided the issue in 2015, however, same-sex marriage was legal in some states, but not in others.

Other examples

There are many other examples where federal circuit courts disagree.

In 2018, the 7th Circuit Court of Appeals, which serves Illinois, Indiana and Wisconsin, ruled that an Indiana state law that banned abortions based on genetic anomalies was not constitutional. The Supreme Court decided not to take Indiana’s appeal of that ruling.
But in 2021, the 6th Circuit Court of Appeals upheld an Ohio law banning abortions based on one kind of genetic anomaly, Down syndrome. That created a circuit-court split of a sort usually resolved by the Supreme Court.

However, the Dobbs decision, which resolved a different abortion case, essentially dissolved the conflict by holding that the U.S. Constitution does not prevent states from banning abortions for any reason: They simply must show a “rational basis” that “would serve legitimate state interests.”

One other thing that confuses many people is how district courts can issue orders that go beyond the borders of their districts, and even their circuits, sometimes applying nationally. There is some scholarly dispute about this. Nevertheless, many judges have issued nationwide rulings on a wide range of issues, including migrant protection protocols, loan foregiveness and mask-wearing mandates.

The case of mifepristone

With this latest example of courts butting heads, Federal District Judge Matthew Kacsmaryk in Texas ruled first, on April 7. His decision took the form of a preliminary injunction, which is essentially a temporary ruling, until the court has a chance to go through a full trial. Kacsmaryk concluded that the FDA had exceeded its authority in approving mifepristone in 2000 and in loosening the prescribing restrictions over the years. As a result, he ruled that the drug’s approval should be revoked entirely.

Within an hour of Kacsmaryk’s ruling, Federal District Judge Thomas Rice in Washington state issued a contradictory ruling, which was also a preliminary injunction, declaring that the FDA’s approval of the drug and its uses should not be revoked.

While Kacsmarkyk’s ruling applied nationwide, Rice’s ruling applied only to the 17 states and the District of Columbia that were the plaintiffs in the suit he was handling. He noted that he had authority to make his ruling nationwide, but he also had discretion to limit the reach of the ruling to the parties that brought suit.

Where the issues stand

The Supreme Court’s ruling means mifepristone will remain as widely available as it was before. Fifteen states already restrict access to medication abortions.

“As a result of the Supreme Court’s stay, mifepristone remains available and approved for safe and effective use while we continue this fight in the courts,” President Joe Biden said in a White House statement.

But that decision is only in effect while the case is being decided by the 5th Circuit. Undoubtedly, that decision will be appealed to the Supreme Court again.

So far, no one has appealed the Washington district court opinion, although a potential future Supreme Court ruling after the 5th Circuit decision would also affect that case’s outcome. And the situation gets even more complicated, with a third lawsuit filed in a federal court in Maryland on April 19. That case was brought by GenBioPro, the manufacturer of a generic version of mifepristone, which the FDA approved in 2019. GenBioPro is seeking to preserve the approval of its drug, despite all the conflicting and confusing court rulings.

Although the Supreme Court majority said that it had hoped that the Dobbs opinion would end federal battles over abortion rights, there is more confusion and conflict than ever, in every corner of the country. And the confusion may continue for a while.