How abortion foes are using an 1800s obscenity law to ban abortion pills by mail

This week, a conservative judge in Texas is expected to rule on a case that challenges the U.S. Food and Drug Administration’s approval of the standard regimen for medication abortion—specifically, the drug mifepristone, which is one of two medications used in the regimen. Less understood is that the case also takes aim at the distribution of that medication through the mail by claiming the pills are obscene material that therefore violates a little-enforced federal law known as the Comstock Act.

The question at hand, according to Mary Ziegler, a legal historian and law professor at the University of California Davis, is how the judge will interpret the Comstock Act. “Do you interpret it to basically bar the mailing of anything having to do with anything with abortion?” she asked. “Or do you interpret it more narrowly, to only apply to certain kinds of intentionally illegal uses, which is what the [Department of Justice] is saying the moment?”

The ruling could be catastrophic for abortion access—medication abortion accounts for about half of all abortions in the United States. And as in-clinic abortion has become harder to access, more and more people have turned to self-managing their abortions by ordering pills through the mail. It has been heralded over and over as a mainstream solution to a post-Roe America, and for many people, it has been. (That is, of course, not to say that this is a simple solution, or one that makes sense for everyone.)

And while the case on its face is outrageous, it stands a strong chance of success, particularly given the judge involved. The lawsuit was filed in Amarillo specifically to ensure that it would be presided over by U.S. District Judge Matthew Kacsmaryk, a deeply conservative Trump appointee who has used his position to limit birth control access to minors and chip away at protections for LGBTQ employees.

“If you were picking any judge, at least in the United States, to make this kind of argument in front of, you would pick him,” Ziegler said.

The argument that the distribution of medication abortion through the mail violates the Comstock Act is somewhat novel. In 1873, Congress passed the act, named for Anthony Comstock, a well-connected political insider who used his influence to propose “An Act for the Suppression of Trade In, and Circulation of, Obscene Literature and Articles of Immoral Use,” which eventually became the legislation bearing his name. As I write in my book chronicling the history of abortion rights in the United States, No Choice, the Comstock Act was “a symptom of a growing societal moral panic, particularly among middle-class Christians.” Comstock proposed the law after leaving his small, New England town for New York City, where he was appalled at the sheer volume of what he deemed obscene.

“He was quite a force to try to stamp out things that he thought were part of an immoral character of the United States, things that he found to be indecent, obscene, lewd, or lascivious,” said Michele Goodwin, author of Policing the Womb and visiting law professor at Harvard University. “Still, it’s interesting and worth noting what could and could not go through the mail [under the Comstock Act].”

Goodwin points out that while, for example, materials that could offend the sensibilities of white women (as, of course, understood in the context of the patriarchal values of the time) would be considered indecent, images of violence against Black people would not have raised the eyebrows of anyone with the authority to invoke the Comstock Act. The act, too, was passed before the 19th Amendment, which granted women the right to vote and was a significant move forward in the law toward understanding women as full human beings with their own rights rather than as the property of their fathers or their husbands.

“It comes at a time that is antithetical to where we are now, but was consistent with the notions of the time—that women hold no space outside of the home, and that the only place that a woman should be is at home tethered to the care of her husband and her children, at a time in which the Supreme Court was upholding those laws saying that women lacked the capacity to reason and as such, they were not suited to civic life,” Goodwin said.

All of this begs the question: What does the Comstock Act mean in the context of today’s values? For Goodwin, the answer is quite clear, given that the Supreme Court has since cited the First Amendment in protecting a variety of speech and expression with regard to sex, protest, and the advertisement for abortion. A ruling that found this medication to violate the Comstock Act “would seem to be counter thetical to a sturdy body of constitutional law, and then also a steady regime of federal laws enacted through Congress that protect the interests of women,” she says.

Of course, there was also a sturdy body of law protecting the constitutional right to abortion, and that did not discourage the majority from overturning that right last summer. Indeed, Justice Samuel Alito invoked a time when women and Black people were not considered full human beings when he referred repeatedly to “this Nation’s history and tradition” as being at odds with abortion rights in the Dobbs opinion. (Though there is a rich history of abortion in America.) Still, Alito and Kacsmaryk seem to have similar, antiquated interpretations of the law, and it doesn’t bode well for the future of equal rights.