USA News Hub

The Comstock Act gets shorthanded as an anti-obscenity law—which it is—but it’s also an anti-abortion law, making it a crime to use the mail to send or receive any device or object that could cause an abortion. Legal scholars have warned that a post-Roe resurrection of the Comstock Act was coming—a way to further attack access to abortion. Medication abortion has helped people in states where abortion is completely or effectively banned, because they can receive pills in the mail from other states and they can safely take them without having to go to a clinic. For the last several months, anti-abortion leaders have been speaking more openly about their plan for using the Comstock Act to ban medication abortion even in states where the procedure is legal, by criminalizing mailing pills.

Justice Clarence Thomas went in another direction with his queries about the Comstock Act. In a back-and-forth with the attorney for Danco Labratories, a mifepristone manufacturer, Thomas asserted that the Comstock Act “specifically covers drugs such as yours,” that the law was “fairly broad,” and that it lacked “safe harbor” for manufacturers. Thomas also asked Erin Hawley, attorney for the Alliance Defending Freedom, the Christian-right legal group representing the Alliance for Hippocratic Medicine, what she thought of what the solicitor general and the Danco attorney said about Comstock, giving her free space to opine. Unsurprisingly, she said she does believe Comstock applies to mailing mifepristone. “The Comstock Act says that drugs should not be mailed either through the mail or through common carriers. So we think that the plain text of that, Your Honor, is pretty clear.”