The Comstock Act Is a Backdoor Approach to a National Abortion Ban—And Justices Alito and Thomas Are Interested

The long dormant Comstock Act is moving out from the shadows into the light—in no small part due to the combined efforts of anti-abortion activists Mark Lee Dickson and Jonathan Mitchell, Justices Alito and Thomas, and Project 2025.

Chief Justice of the United States John Roberts, Justice Clarence Thomas and Justice Samuel Alito attend a ceremony for the late Supreme Court Justice Sandra Day O’Connor on Dec. 18, 2023. (Jacquelyn Martin-Pool / Getty Images)

A general consensus seems to have emerged after last week’s oral arguments in FDA v. Alliance for Hippocratic Medicine that the Supreme Court is likely to rule that the anti-abortion physicians and their umbrella group, the Alliance for Hippocratic Medicine, lack sufficient legal grounds to challenge the FDA’s 2016 and 2021 loosening of restrictions on the abortion drug mifepristone. Legal standing to bring suit in federal court requires (among other considerations) that the party bringing suit has suffered an actual or threatened injury.

Opposition to abortion does not confer standing, no matter how passionate. Nor is it conferred by “a long chain of remote contingencies,” as Solicitor General Prelogar argued on behalf of the FDA. Notably, these are the twin pillars supporting the plaintiffs’ theory of standing.

As Adam Unikowsky puts it, it relies upon the attenuated possibility that “some woman … might take mifepristone and experience an extremely rare complication. … She might randomly wander into one of the emergency rooms where the plaintiff-doctors work … leaving [them] with no choice but to treat the woman [which] will violate the doctors’ conscience, stress the doctors out or take them away from something else they’d rather be doing.” 

Dismissing the lawsuit for a lack of standing would give the Court an off-ramp, without appearing to retreat from the fierce anti-abortion stance that it staked out in Dobbs. It would also prevent creating “chaos in the processes for drug development, approval and modification,” as argued in an amicus brief filed by the pharmaceutical industry, which would create “a shadow of lasting uncertainty over every FDA approval and invite spurious lawsuits challenging FDA’s settled safety and effectiveness determinations.”

While dismissal based on a lack of standing would be a welcome result, it is not a guarantee given the Court’s anti-abortion supermajority. But even if this occurs, the apparent zest manifested by Justices Samuel Alito and Clarence Thomas towards the Comstock Act from 1873 brings a lurking danger fully out into the open. 

By way of brief background, this Victorian-era purity law was a proud accomplishment of anti-vice crusader Anthony Comstock who “’believed that anything remotely touching upon sex was … obscene.” Seeking to cleanse the nation of sexual sin, he successfully lobbied Congress to criminalize the sending of obscene materials through mail, which was defined to include birth control and “every article or thing designed, adapted or intended for producing abortion.” The Comstock Act was subsequently amended to further criminalize the conveyance of “obscene” material, by way of common carriers and interactive computer services.  

I really was hoping no one would say anything about the Comstock laws until Dobbs came out.

Jonathan Mitchell

During the first half of the 20th century, a series of court decisions narrowed the scope of the Comstock Act. Consequently, according to a 2022 memorandum issued by the Office of Legal Counsel for the Department of Justice, it was no longer understood to “prohibit the conveyance of articles intended for preventing conception or producing an abortion” unless the sender intended for them to be used unlawfully. 

Adding to the narrowing of the law, after the Court’s 1965 decision in Griswold v. Connecticut recognizing the constitutional right of married couples to use birth control, Congress removed the contraceptive language from the Comstock Act and the abortion provisions had been considered a dead letter of the law since the Court’s 1973 decision in Roe v. Wade. That is, until Dobbs

However, trouble was actually already brewing even before the Court overturned Roe. Attorney Jonathan Mitchell—the legal mind behind the “bounty hunter” approach to the enforcement of anti-abortion laws and more recently counsel for Donald Trump before the Supreme Court in the Colorado ballot challenge—told The Nation that he “knew about Comstock before Dobbs, but I wanted to say nothing about it. … I really was hoping no one would say anything about the Comstock laws until Dobbs came out.”  

Presumably, Mitchell was hoping to keep Comstock on the down-low until after the decision in Dobbs because while his fellow travelers in the anti-abortion movement were pressing the Court to overturn Roe and return legal authority over abortion to the states, he was hitching his dream of a national abortion ban to a federal statute. Soon after Dobbs, Mitchell helped hatch a plan with “God-fearing, Texas born and raised, pro-life activist” Mark Lee Dickson—director of Right to Life East Texas and founder of Sanctuary Cities for the Unborn—as to how the Comstock Act could be harnessed as a backdoor approach to the effectuation of a national ban

In 2019, Dickson launched his Texas-based sanctuary city movement aimed at outlawing abortion “one city at a time” by enacting local ordinances expressly prohibiting abortion within municipal boundaries. As tensions between abortion-restrictive and abortion-protective states heated post-Dobbs, Dickson feared that providers from Texas would relocate into southeastern New Mexico (a notably conservative part of the state) in order to ‘lure’ abortion-seekers across the border between the two states. In response to this threat, he sought to likewise export his sanctuary city movement across the two-state border. 

Dickson, however, was concerned that this abortion-protective state would thwart this plan by passing a law prohibiting municipalities from enacting local abortion bans. And this is exactly what happened: In the spring of 2023, the New Mexico legislature approved the Reproductive and Gender-Affirming Health Care Freedom Act, prohibiting “public bodies, including local municipalities, from denying, restricting or discriminating against an individual’s right to use or refuse reproductive health care or health care related to gender.”

But Dickson, together with Mitchell, devised an end-run around this prohibition: Rather than importing a Texas-style municipal ordinance expressly banning abortion into New Mexico, they would instead tether the ordinance directly to the Comstock Act, thereby creating a “de facto” (in fact) abortion ban. As Dickson explains, by “requiring compliance with federal laws on abortion prohibiting the mailing or receiving of any abortion-inducing drugs or abortion-related paraphernalia, the ordinances make it impossible for any abortion facility to function legally—even if they were to get their equipment or pharmaceuticals from elsewhere within the state.” 

As the duo argue, we do “not need a ‘new’ federal abortion ban on the books because the Comstock Act is a ‘de facto’ abortion ban that would end abortion in every single state in America.” Central to this vision is that given the supremacy of federal over state and municipal law, not even the bluest of states would be able to evade the reach of Comstock’s ban on the conveyance of any “article or thing designed, adapted or intended for producing abortion.” Based on the questions they posed at oral argument, it appears that Justices Alito and Thomas are fans, at least as far as preventing access to mifepristone is concerned.

In questioning Solicitor General Prelogar, Alito pressed that in loosening the restrictions on mifepristone, the FDA should have “at least considered” the applicability of the Comstock Act—which he refers to by statute number, rather than by name—given that the criminal prohibition on the conveyance of articles used for abortion “is a prominent provision. It’s not some obscure subsection of a complicated obscure law. They knew about it. Everybody in this field knew about it.” 

The Comstock Act is a ‘de facto’ abortion ban that would end abortion in every single state in America.

Mark Lee Dickson

I suppose the anti-conveyancing provision can arguably be characterized as “prominent,” in the context of the handful of localities in Southeastern New Mexico (and possibly in Danville, Ill., which enacted a Comstock ordinance in May of 2023, as well) and Project 2025, the right-wing policy agenda for the next administration that calls for the enforcement of Comstock against “providers and distributors of abortion.”

But more broadly, until very recently, it has been “a little-known part of an old federal law,” which has not been enforced since 1936. 

Moreover, as Prelogar explained, the FDA is only empowered to consider the “safety and efficacy” of restrictions on drugs. Therefore, consideration of the Comstock Act when reviewing access restrictions would have been outside the agency’s purview.

Alito was tag-teamed by Thomas, who gave Erin Hawley, an attorney from the Alliance Defending Freedom representing the anti-abortion docs and their representative association, a chance to explain the importance of Comstock to this case. Expectedly, she explained, “We don’t think that there’s any case of this Court that empowers FDA to ignore other federal law. With respect to the Comstock Act, [it] says that drugs should not be mailed … either through the mail or through common carriers.”

Even if the Court dismisses this lawsuit due to a lack of standing, it is clearly far too early to break out the champagne. As a recent issue brief from Governing for Impact stresses, although the 2022 OLC memo means that “under the current administration, the Comstock Act will remain a dead letter,” the memo is not legally binding on the next administration, which remains free to reject, revoke or ignore it.  

Post-Dobbs, the long dormant Comstock Act is moving out from the shadows into the light—in no small part due to the combined efforts of Dickson, Mitchell, Alito, Thomas and Project 2025. It is the anti-abortion movement’s best hope for the implementation of a national abortion ban as congressional action would not be not required seeing as the law is still on the books. Not that we need any reminders, but this is yet another reason why the upcoming presidential election is so critical. 

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Shoshanna Ehrlich is professor emerita of women’s, gender and sexuality studies at the University of Massachusetts Boston. Her books include Who Decides: The Abortion Rights of Teens and the co-authored Abortion Regret: The New Attack on Reproductive Freedom. She is currently collaborating with the Planned Parenthood League of Massachusetts’ ASPIRE Center for Sexual and Reproductive Health on a minors’ abortion rights and access project.