USA News Hub

This second claim is what the amicus brief from 145 members of Congress takes up, supporting the notion that the FDA approved mifepristone in defiance of the Comstock Act’s prohibitions. Congress has “decreed,” their brief states, “that abortion-inducing drugs are ‘nonmailable matter’ and prohibited their shipment by the United States Postal Service and common carriers, protecting women and girls from the heightened risks of mail-order chemical abortion drugs.” For this, they cite two provisions of the Comstock Act barring the mailing, transportation, or importation of “obscene matter,” which the Act defines expansively and broadly. Such “matter” includes: “every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose.” This could potentially apply to everyone involved in medication abortion: the drug manufacturer (something Supreme Court Justice Clarence Thomas seemed to support at oral argument), the distributors, the health care providers, and the people who use the drug. If federal prosecutors brought cases under the provisions these members of Congress say should be enforced, sending or receiving mifepristone through the mail could potentially result in five years in prison.

This brief is not an isolated argument. These members of Congress who are arguing that the Comstock Act already prohibits mailing mifepristone are also advancing a larger plan openly advocated by the Christian right: to get a friendly attorney general to enforce Comstock as a national abortion ban. While their chosen candidate is getting scrutinized for whether he would sign a federal abortion ban, groups like the Heritage Foundation, along with Alliance Defending Freedom and more than 100 allied groups, are already rallying support for using the Comstock Act to immediately put into motion what they likely couldn’t win in Congress. As one anti-abortion attorney told The Atlantic recently, “Federal bans can’t pass,” but they don’t need to with Comstock already on the books. Among the ideas he floated for enforcing the Comstock Act? As the reporter paraphrased them, “The administration could kick Planned Parenthood out of Medicaid by saying that the women’s health care provider violates the act, he suggested. It could launch criminal investigations into abortion funds and abortion-pill distribution networks.”

This Republican-backed campaign to revive the Comstock Act as a national abortion ban is happening right in the open, but Democrats have not sufficiently acknowledged this threat. After Dobbs, the Department of Justice did issue legal guidance on abortion medications and the Comstock Act, stating that the law did not necessarily prohibit the mailing of the drugs. This week, a Biden campaign manager sent a memo to the press, noting that Trump’s advisers intend to use Comstock as a national abortion ban. That’s about it. There’s little open resistance from Democrats in Congress, with the notable exception of Representative Cori Bush, who called for repealing Comstock in March. The Washington Post editorial board voiced its support for a repeal as well. “Democrats should lead that effort while they still control the Senate and the White House,” they wrote earlier this month. “Let House Republicans refuse to consider a bill, or the Senate GOP filibuster one, and explain to voters why they oppose eliminating even the theoretical chance people could get up to five years in prison (the maximum penalty for a first offense) for shipping mifepristone.”