Abortion by Mail and the Comstock Act
- Miranda Bracken
- 1 day ago
- 3 min read
In Louisiana on May 1, the US court of appeals for the fifth circuit ordered a nationwide ban on mailing mifepristone. Three days later, on May 4, Supreme Court Justice Samuel Alito responded to an emergency appeal from two mifepristone manufacturers and put a temporary stay on the Louisiana court’s order.
The Supreme Court extended the stay indefinitely on May 14 in a 7-2 decision. The ruling led to a firestorm in the post-Roe landscape as pro-life and pro-choice advocates alike rushed to debate the next steps.
Pro-choice advocates have wasted no time in listing all the reasons that the Louisiana court’s decision was wrong – an appeals court cannot issue a nationwide order, and mifepristone is not under Louisiana’s jurisdiction but the FDA’s, which is a department of the national government. Pro-life advocates have responded that even though the appeals court may not have had the authority to make a national order, they had the right idea. They argue that regardless of how this court case plays out, it is time to put an end to mail-order abortion.
Justice Alito, who voted against the stay’s indefinite extension, wrote in his dissenting opinion that, “What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women's Health Organization.”
Whether or not Alito is right in this instance, something clearly needs to change since mail-order abortion is rendering Louisiana and other states’ bans on abortion powerless. The pro-life movement may have found an answer to the conflict in the Comstock Act, a statute originally passed in 1873 which forbids the mailing of “obscene materials.” Even though the criminal code underwent a massive overhaul in 1948, Congress chose to retain the provision of the Comstock Act that criminalized the mailing of abortifacients.
Carolyn McDonnell writes for the Federalist that, “Senator Alexander Wiley — then-chairman of the Senate Judiciary Committee [in 1948] — stated that ‘[o]bsolete and executed provisions are eliminated’ within the codification bill that Congress passed, suggesting that Congress did not view the mail-order abortion rules as obsolete.”
Despite this law, abortifacients continue to find their way into the mail under the so-called protection of the FDA. “Mifepristone is not obscene material, only a drug,” the argument goes. “Therefore, we can mail it anyway.”
Yet if the Comstock Act is a law that has not been repealed but remains active in the court system, why shouldn’t it be enforced?
As McDonnell acknowledges, we have a different legal landscape post-Roe than we did when the Comstock Act was first introduced. Since some states protect the practice of abortion, the abortion industry may violate the Comstock Act while simultaneously upholding the laws of certain states.
Yet this is not, as some people have suggested, a sufficient reason to repeal the Comstock Act. The act may require certain modification, but the states which have banned abortion ought to have just as much of a right to enforcement of their laws as the states which promote abortion. The way to secure those rights is through the Comstock Act.
Ultimately, we must acknowledge that this is not so much a debate of states’ rights as of babies’ rights. If babies are human beings inside and outside of the womb, we ought to be doing everything we can to protect their lives.
When did murdering babies become a question of drugs? Why should the FDA have a monopoly on murder?
