Return to Sender: A Call to Repeal the Dormant Comstock Act to Protect Reproductive Rights – N.Y.U. Journal of Legislation & Public Policy

By Anne Kathryn Mills

December 5, 2024

The removal of the constitutional right to abortion, coupled with the return of President Trump, could spell catastrophic consequences for individuals seeking reproductive care due to the resurgence of the dormant but dangerous Comstock Act. During the oral arguments for FDA v. Alliance for Hippocratic Medicine,¹ Justice Alito and Justice Thomas alluded to a potential future challenge to the legality of mifepristone under the Comstock Act, 18 U.S.C. §§ 1461 and 1462.² With President Trump’s return to power, this long-inactive law could be used to enforce a nationwide abortion ban. This Article delves into the historical trajectory of the 1873 Comstock Act³ in relation to abortion, examines its current text and resurgence in today’s political climate, and advocates for its repeal or revision to avert the looming threat of a federal abortion ban under Trump’s administration.

I. The Enactment and Early Interpretation of the Comstock Act

Congress enacted The Comstock Act amidst a nationwide “purity” campaign.⁴ At the time, there was a widespread belief that “illness was punishment for immoral sexual behavior.”⁵ The campaign focused on removing obscene material to fight the perceived connection between obscenity, illness, and sexual urges.⁶ The movement began in New York, where Anthony Comstock and the New York Society for the Suppression of Vice argued that controlling immorality would fix increasing poverty, crime, and prostitution in urban areas.⁷ Consequently, New York State then passed legislation adhering to the anti-obscenity movement in the 1870s.⁸ Comstock’s beliefs quickly gained national attention,⁹ and Congress enacted the Comstock Act to curtail the dissemination of “obscene, lewd or lascivious” materials through the mail.¹⁰ Congressional records about the statute’s enactment note that the Act would protect against “‘nefarious and diabolical traffic’ that was a threat to the Republic and the ‘vigor and purity of our youth.’”¹¹

The sweeping legislation categorically deemed various items, including contraception, abortion drugs, and pornography, as “nonmailable matter.”¹² The Act included abortion under the umbrella of obscene material because of the belief that abortions “promoted sex for pleasure rather than for procreation.”¹³ During the era of enactment, images that promoted contraception or abortion were considered obscene and outlawed by the statute because they had the ability to “cause sexual excitement.”¹⁴ Notably, women lacked significant political and legal agency during this time: they could not vote, practice law, or have any other meaningful participation in the American political or legal process.

The Comstock Act was “feverishly enforced” in the years after its enactment.¹⁵ The feverish enforcement is evident by Anthony Comstock’s own actions: he was “reported to have traveled over 20,000 miles searching for violators, made fifty-five arrests, secured twenty convictions, and seized over 60,000 so-called obscene rubber articles.”¹⁶ By the 1920s, a developed, sizable middle class opposed the anti-obscenity laws,¹⁷ and the federal courts consistently found the Act to apply solely to “unlawful” abortions in the years after its enactment.¹⁸ In Bours v. United States, the Court of Appeals for the Seventh Circuit stated that “abortion” in the statute must be taken in its general medical sense and should not apply to “all” abortions.¹⁹ The court concluded that “the rule of giving a reasonable construction” meant that the act would not cover abortions intended to “save life.”²⁰ For example, “a physician may lawfully use the mails to say that if an examination shows the necessity of an operation to save life he will operate.”²¹ Thus, the court introduced a dimension of reasonability to the statute’s application.²² The Second Circuit, in United States v. One Package, declared that the Comstock Act’s “design . . . was not to prevent the importation, sale, or carriage by mail of [abortion-related] things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well being [sic] of their patients.”²³ The opinion further discussed that courts have read an exemption into the act covering such medicinal articles in the context of abortion even where the word “unlawful” is not used.²⁴ Additionally, the Sixth Circuit asserted that the intention to prevent proper medical use of drugs or other mechanical devices merely because they are capable of illegal abortion uses should not “lightly be ascribed to Congress.”²⁵ These decisions consistently held that the Comstock Act’s focus should be “unlawful” abortions, the Act should recognize exemptions for medical necessities, and Congress intended to support proper medical practices.

II. The Current Text of the Comstock Act

Despite consistent rulings that the Act only applies to unlawful abortions, the statute’s present wording lacks explicit mention of legality. The Comstock Act currently disallows the mailing of “[e]very article or thing designed, adapted, or intended for producing abortion.”²⁶ The current practice most affected by the Act’s interpretation is mailed medication abortions, which now account for more than half the abortions in the United States.²⁷ Medication abortions consist of a regimen of two Food and Drug Administration (the “FDA”) approved drugs, mifepristone and misoprostol, to end a pregnancy at up to ten weeks’ gestation.²⁸ This medical regime was recently challenged in FDA v. Alliance for Hippocratic Medicine;²⁹ however, the Supreme Court found the plaintiffs lacked standing and did not decide any merits arguments.³⁰ The decision leaves the FDA system vulnerable to future Comstock Act legal challenges and future administration changes.

Although 18 U.S.C. § 1461 applies only to the use of U.S. Mail, 18 U.S.C. § 1462 prohibits the use of popular private or commercial carriers such as FedEx or United Parcel Service (UPS) to ship the same obscene materials interstate.³¹ Section 1462 was first codified in 1943 and is derived from Section 3 of the 1873 Comstock Act.³² These two laws together effectively outlaw all modern mailing options in the abortion context. If enforced, sending an abortion pill in the United States Postal Service can violate Section 1461, and using any private or commercial express or carrier to send the same drugs interstate can violate Section 1462.³³ Both sections could be implicated in the routine practice of a medication or non-medication abortion.³⁴ A first offense under the Comstock Act can lead to imprisonment for up to five years and up to ten years for each subsequent offense.³⁵

Interestingly, the Comstock Act has not been enforced in other domains important during its enactment. The Act is no longer used against the mailing of contraception,³⁶ and the mailing of pornography magazines is common.³⁷ As noted by James McHugh, “prosecutors today have largely abandoned obscenity prosecutions” except for situations involving “child pornography and live sex shows.”³⁸ The law is truly a “zombie law.”³⁹ It is undead in that it remains on the books, but alive in that it can be enforced in a future regime who chooses to act independently and without regard to judicial precedent.⁴⁰

III. The Act’s Resurgent post-Dobbs

Over the years, the law’s interpretation has been narrowed by Congress⁴¹ and widely abrogated by the courts.⁴² Moreover, the law was not applicable to abortion between 1973 and 2022 because the Supreme Court found a fundamental right to abortion inherent in the Due Process Clause’s right to privacy in Roe v. Wade.⁴³ Since the law is read to cover only unlawful abortions, Roe’s solidification of the right rendered the Comstock Act ineffective for regulating abortion.⁴⁴ After Dobbs v. Jackson Women’s Health Organization⁴⁵ found that the federal Constitution does not provide a right to abortion and overturned Roe v. Wade,⁴⁶ the entire landscape of reproductive rights changed. Laws like the Comstock Act that were formerly deemed “obsolete” are now available to limit a pregnant person’s abortion access.⁴⁷

Since the law was never formally repealed,⁴⁸ litigants have used the Comstock Act in lower federal court challenges post-Dobbs.⁴⁹ One district court responded, stating the Comstock Act does not prohibit the distribution of medication or other items intended to be used for lawful purposes.⁵⁰ The court emphasized the long history of this interpretation and specifically note that this view has been consistent since Bours in 1915.⁵¹ Other district courts, namely the district court in Alliance for Hippocratic Medicine v. FDA,⁵² found a revitalization in the Comstock Act after Dobbs.⁵³ The court thought the FDA’s actions, which allow mifepristone to be dispensed via mail, violated the long-dormant law.⁵⁴ Judge James Ho of the Fifth Circuit agreed that mail delivery of abortion pills is illegal under the Comstock Act in his concurring opinion on the case’s appeal.⁵⁵

The movement to reinsert the Comstock Act into modern jurisprudence is not only found within the courts but in the broader conservative agenda. Numerous organizations within the antiabortion movement are working to reinvigorate their efforts. This includes historically moderate “organizations like Americans United for Life, financial powerhouses in the Christian legal movement like the Alliance Defending Freedom, newly powerful activists in Students for Life, and Republican powerbrokers tied to the Heritage Foundation.”⁵⁶ Last year, twenty conservative state attorneys general wrote a letter last year to both CVS and Walgreens pressuring the pharmacies not to mail medicinal abortions pills.⁵⁷ They argued that the “plan to use the mail to distribute abortion pills is both unsafe and illegal” because of the Comstock Act.⁵⁸ Since November 2022, multiple municipalities at both the city and county level have enacted ordinances mandating compliance with the Comstock Act.⁵⁹ Unlike previous ordinances that simply banned abortion within municipal or county boundaries, these new measures claim to enforce federal law.⁶⁰ These varied actions all seek to bring the Comstock Act, and its broad textual interpretation, into the modern day.

As the conservative movement gains momentum in the lower courts and across circuits, Justice Alito and Justice Thomas’s signals during the oral arguments of FDA v. Alliance for Hippocratic Medicine may spell trouble.⁶¹ At issue in the case was whether multiple FDA amendments adjusting procedures for administrating medication abortions were arbitrary and capricious.⁶² One of these actions was eliminating mifepristone’s in-person dispensing requirement and allowing certain providers to mail medicinal abortions.⁶³ During oral arguments, Justice Alito asked whether the FDA should have “at least considered the application 18 U.S.C. § 1461” when approving the changes to mifepristone at issue in the case.⁶⁴ While Justice Alito chose to use the statute’s numerical name, Justice Thomas chose to address the issue by its better-known title of the “Comstock Act.” Justice Thomas, mirroring Judges Ho and Kacsmaryk,⁶⁵ asked parties for their responses to the idea that mailing medicinal abortions would violate the Comstock Act.⁶⁶ These questions were posited even after the FDA received a memorandum from the Department of Justice’s Office of Legal Counsel that the Comstock Act “poses no issue for [the] FDA’s approval of [drug manufacturers’] applications.”⁶⁷ Although the Court ultimately decided the case on jurisdictional grounds,⁶⁸ their line of questioning hints at a court at least partially sympathetic to future parties challenging abortions by mail under the Act. The absence of a ruling on the merits enables lower court challenges on the issue.

IV. The Comstock Act’s Future Implications and Potential Solutions

The Biden Department of Justice stated that it will not enforce the Comstock Act against legal vendors of mifepristone.⁶⁹ Under the new Trump term, this precedent is threatened as those involved in his first administration have suggested a future Trump presidency will enforce the Act.⁷⁰ The incoming presidential administration can use the Comstock Act to prosecute those who send or receive materials used to cause abortions. Moreover, it is well documented that the Roberts Court uses textualism often and as a primary of statutory interpretation.⁷¹ A textualist reading of the Comstock Act would not only implicate medication abortions but medicinal instruments used in procedural abortions, such as dilators and suction catheters, and even gloves and speculums.⁷² Some conservative scholars have already argued for this interpretation.⁷³ This textualist reading and enforcement would effectively ban all abortions, and negatively affect all healthcare by blocking necessary medical supplies, without the need for any Congressional action because the law is still on the books.⁷⁴

Regardless of the Trump administration’s Comstock Act interpretation, the law needs modifications. Sections 1461 and 1462 predicate acts of Racketeer Influenced and Corrupt Organizations (“RICO”).⁷⁵ Therefore, even if an administration chooses not to bring prosecutions, private citizens may still bring a civil cause of action under RICO, which would levy high penalties against any person who violates these laws.⁷⁶ There are multiple avenues to fix the impending Comstock problem.

A. Option One: Repeal the Comstock Act in its Entirety

Congress should formally repeal the statute to remove the threat of a future presidential administration enforcing the Comstock Act and the current threat of private enforcement. Congressional members have tried numerous times to repeal the Act in the past.⁷⁷ This avenue is not likely to succeed because of the current congressional makeup. With a conservative majority in Congress,⁷⁸ a repeal of the Act may be viewed as an affront to conservative values. Furthermore, repealing the statute in its entirety may not be legally justified, as they are also utilized to prosecute various other of offenses for “obscene” material.⁷⁹ In any event, a repeal would solve the potential reproductive justice threats the Act poses.

B. Option Two: Repeal the Comstock Act in the Abortion Context

A formal repeal of the Comstock Act for its abortion implications is the most effective solution. The Comstock Act was repealed in the contraception context after Griswold v. Connecticut,⁸⁰ a landmark Supreme Court ruling that established a married couple’s right to privacy in their procreative decisions.⁸¹ After, Congress removed the references to contraception from the Comstock laws in 1971 because it would conflict with the constitutional guarantees enumerated in Griswold.⁸² Congress can do the same for its references to abortion. As recently as 1996, former United States Senator Frank Lautenberg (D-NJ) introduced the Comstock Clean-Up Act to strike the prohibition on mailing abortion-related items.⁸³ The measure did not pass then, but it may have been deemed unnecessary due to Roe’s protection of abortion rights.⁸⁴ It is critical now.

At the Fifth Circuit level in Alliance for Hippocratic Medicine v. FDA,the government has already argued that the Food and Drug Administration Amendments Act (the “FDAAA”)⁸⁵ sub silentio repealed the Comstock Act for medicinal abortion, at least where mifepristone is concerned.⁸⁶ In 2007, the FDAAA created a statutory framework governing risk evaluation, mitigation strategies, and drugs, including mifepristone, with then-existing distribution restrictions.⁸⁷ Since the FDAAA acted to legalize the shipment of mifepristone, the framework can be read to implicitly repeal the Comstock Act for medicinal abortions. However, the Court of Appeals noted that “repeals by implication are not favored.”⁸⁸ Therefore, to protect citizens from prosecution in the future, Congress should act to remove the Comstock Act’s broad language outlawing abortions by mail.

C. Option Three: Create Explicit Exceptions for Healthcare or Lawful Abortions

When the Comstock Act was originally introduced, the bill included a health exception that allowed prescriptions issued by “a physician in good standing . . . given in good faith.”⁸⁹ The bill was later amended, and the exception was deleted.⁹⁰ Moreover, federal courts in the 1930s interpreted the obscenity statute to prohibit illicit sex but not to deny citizens access to needed health care.⁹¹ Instead of repealing the statute, a divided Congress can add this exception into the codified law to allow prescriptions for healthcare. This codification should instruct that medicinal abortions are included under the healthcare exception.

While not a perfect solution, Congress could also add the word “unlawful” to abortion provisions as well. This change would qualify the Act to apply explicitly only to unlawful abortions and be in line with past judicial decisions. This choice would still fail to protect people in states which have deemed abortions unprotected. It would only give the benefits to states who have codified the right to abortion. However, this may eliminate the necessity for the Comstock Act over time. States are increasingly recognizing the right to abortion through codification in their laws or through ballot initiatives.⁹² Fifteen of the seventeen ballot initiatives to expand reproductive liberties have passed since Dobbs.⁹³ As more states pass these measures, the single word “unlawful” will impact more citizens seeking reproductive healthcare in a future version of the Comstock Act. This may be an easier change to get passed a divided Congress. It may also be harder to challenge in a future Supreme Court case. The Dobbs Court focused on the necessity of federalism in finding that states may choose their own abortion regulations.⁹⁴ If the Comstock Act mirrors a state’s individual choice by inserting the word “unlawful,” the Court may have to follow it.

V. Conclusion

The threat to reproductive rights under Trump’s new administration is unprecedented and immediate. With the Comstock Act at his disposal, backed by a conservative Supreme Court⁹⁵ and a Republican-controlled Congress, a national abortion ban is looming on the horizon. The clock is ticking: Democrats have less than two months left in their congressional majority to neutralize the Comstock Act before the opportunity vanishes. Despite clear evidence from state ballot measures that abortion rights remain popular in both red and blue states, inaction now would allow Republicans to cement their anti-abortion agenda unchecked. Perhaps a Republican Congress will remove the Comstock Act to gain favor with voters, but failing to act could mean a devastating blow to reproductive freedom across the United States, with a lasting impact on countless lives.

Anne Kathryn Mills, Editor-in-Chief, N.Y.U. Journal of Legislation and Public Policy, J.D. Class of 2025, N.Y.U. School of Law.

Suggested Citation: Anne Kathryn Mills, Return to Sender: A Call to Repeal the Dormant Comstock Act to Protect Reproductive Rights, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2024).

1
FDA v. All. for Hippocratic Med., No. 23-235 (U.S. argued Mar. 26, 2024).
2
Transcript of Oral Argument at 26, 47-48, FDA v. All. for Hippocratic Med., No. 23-235 (argued Mar. 26, 2024).
3
18 U.S.C. §§ 1461-1462.
4
Maria T. Vullo, People v. Sanger and the Birth of Family Planning Clinics in America, 9 Jud. Notice 43, 45 (2013).
5
Priscilla J. Smith, Contraceptive Comstockery: Reasoning from Immorality to Illness in the Twenty-First Century, 47 Conn. L. Rev. 971, 982 (2015).
6
Id.
7
James F. McHugh, Sex and the Constitution, 99 Mass L. Rev. 105, 107 (2018) (reviewing Geoffrey R. Stone, Sex and the Constitution (2017)).
8
Social Purity The Anti-Obscenity and Birth Control Movements 1870-1930, Museum of the City of New York (last visited Nov. 8, 2024), https://www.mcny.org/exhibition/social-purity [https://perma.cc/56US-LAL9].
9
McHugh, supra note 7.
10
Vullo, supra note 4.
11
Smith, supra note 5.
12
Nathanial Weixel, Fears grow over Comstock Act, Justices Thomas, Alito, The Hill (Mar. 28, 2024 6:00 AM), https://thehill.com/policy/healthcare/4560476-fears-grow-over-comstock-act-justices-thomas-alito [https://perma.cc/74RK-GJTB].
13
Michelle S. Simon, The Federal Future of Medication Abortion, 57 Ind. L. Rev. 613, 660 (2024).
14
Id. at 659.
15
César Cuauhtémoc García Hernández, Of Inferior Stock: The Two-Pronged Repression of Radical Immigrant Birth Control Advocates at the Turn-of-the-Twentieth Century, 20 St. Thomas L. Rev. 513, 518 (2008).
16
Id.
17
Id. at 520
18
See, e.g., United States v. One Package, 86 F.2d 737, 739 (2d Cir. 1936) (reading the Comstock Act to only apply to “unlawful” abortions); Bours v. United States, 229 F. 960, 964 (7th Cir. 1915) (finding the Comstock Act does not apply to “all” abortions).
19
Bours, 229 F. at 964.
20
Id.
21
Id.
22
Ebba Brunnstrom, Abortion and the Mails: Challenging the Applicability of the Comstock Act Laws Post-Dobbs, 55 Colum. Hum. Rts. L. Rev. 1, 15 (2023).
23
One Package, 86 F.2d at 739.
24
Id.
25
Davis v. United States, 62 F.2d 473, 474 (6th Cir. 1933).
26
18 U.S.C. § 1461.
27
Bruunstrom, supra note 22, at 4.
28
Id.
29
Brief of Petitioner-Appellant at I, FDA v. All. for Hippocratic Med., 602 U.S. 367 (2024) (asking whether the FDA’s 2016 and 2021 Amendments on medicinal abortions are arbitrary & capricious); see also infra notes 62–69 and accompanying text.
30
FDA v. All. for Hippocratic Med., 602 U.S. 367, 396–97 (2024) (finding plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact).
31
Brunnstrom, supra note 22 at 9.
32
Id.
33
Id.
34
Id.
35
18 U.S.C. § 1461.
36
See infra notes 82–84 and accompanying text.
37
See, e.g., Alex Altman, Girlie Mags, Time (Dec. 1, 2008, 12:00 AM), https://time.com/archive/6909478/girlie-mags [https://perma.cc/CY9C-YA47]. Although the mailing of pornography magazines is not as common since the advent of the internet, “[t]he medium may change,” but the lack of enforcement as an obscene material does not. Cf. Robert Weiss, The Evolution of Pornography, Psychology Today (July 2, 2020), https://www.psychologytoday.com/us/blog/love-and-sex-in-the-digital-age/202007/the-evolution-pornography [https://perma.cc/R58F-R4GD].
38
McHugh, supra note 7 at 107.
39
Cf. Howard M. Wasserman, Zombie Laws, 25 Lewis & Clark L. Rev. 1047, 1051 (2022) (citing Pool v. City of Houston, 978 F.3d 307, 309 (5th Cir. 2020)).
40
Id. (“They are alive in that they are enforceable by that departmentalist executive acting on an independent constitutional judgment.”).
41
Weixel, supra note 12.
42
GenBioPro, Inc. v. Sorsaia, 2023 WL 3211847, at *7 (S.D. W. Va. May 2, 2023) (calling the Comstock act “a widely abrogated 19th century statute”); M. S. v. Amazon.com, Inc., 2023 WL 8283642, at *10 (S.D. W. Va. Nov. 30, 2023) (citing numerous 1960 and 1970 Supreme Court decisions that “construed §§ 1461 and 1462 narrowly to apply only to obscenity”).
43
410 U.S. 113, 153-154 (1973) (finding the constitutional right of privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy).
44
See supra notes 15–26 and accompanying text.
45
597 U.S. 215 (2022).
46
Id. at 231 (citing Roe v. Wade, 410 U.S. 113 (1973)) (“The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision, including . . . the Due Process Clause of the Fourteenth Amendment.”).
47
Weixel, supra note 12 (noting that some experts have said the Comstock Act has been “rendered obsolete”).
48
Satanic Temple, Inc. v. Rokita, 2023 WL 7016211, at *2 (S.D. Ind. Oct. 25, 2023) (noting the Comstock Act of 1873 is “still in force today”).
49
See, e.g., GenBioPro, Inc. v. Sorsaia, 2023 WL 3211847, at *7 (S.D. W. Va. May 2, 2023); Satanic Temple, Inc. v. Rokita, 2023 WL 7016211, at *2 (S.D. Ind. Oct. 25, 2023) (“Federally, the Comstock Act of 1873, still in force today, makes it a criminal offense to mail any “article or thing designed, adapted, or intended for producing abortion.”).
50
GenBioPro, Inc., 2023 WL 3211847, at *7 (“While the plain language of the statute arguably encompasses GenBioPro’s business model, the Comstock Act is currently understood to apply only to use of the mails in an illegal manner.”).
51
Id. (citing Bours v. United States, 229 F. 960 (7th Cir. 1915); Davis v. United States, 62 F.2d 473 (6th Cir. 1933); United States v. One Package, 86 F.2d 737 (2d Cir. 1936); Consumers Union of United States, Inc. v. Walker, 145 F.2d 33 (D.C. Cir. 1944)) (noting that the cited cases indicate that the Comstock Act does not cover lawful abortions).
52
668 F. Supp. 3d 507, 545-56 (N.D. Tex. 2023).
53
Id. at 530 (citing Bours v. United States, 229 F. 960, 964 (7th Cir. 1915)) (“[The Comstock Act] ‘indicates a national policy of discountenancing abortion as inimical to the national life.’”).
54
Id.
55
All. for Hippocratic Med. v. FDA, 78 F.4th 210, 256, 267–272 (5th Cir. 2023) (Ho, J., concurring).
56
Reva B. Siegel & Mary Ziegler, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, 134 Yale L.J. (forthcoming 2024) (manuscript at 71).
57
See Press Release, Andrew Bailey, Missouri Attorney General, Attorney General Bailey Directs Letter to CVS and Walgreens Over Distribution of Abortion Pills (Feb. 1, 2023), https://ago.mo.gov/attorney-general-bailey-directs-letter-to-cvs-and-walgreens-over-distribution-of-abortion-pills/ [https://perma.cc/Q7MX-3MCD]; see also Letter from Andrew Bailey, Attorney General of Missouri, to Danielle Gray, Executive Vice President, Walgreens Boots Alliance, Inc. (Feb. 1, 2023), https://ago.mo.gov/wp-content/uploads/attachments/2023-02-01-fda-rule—walgreens-letter-danielle-gray.pdf?sfvrsn=ff1e6652 [https://perma.cc/GT2Z-JV95]; Letter from Andrew Bailey, Attorney General of Missouri, to Tom Moriarty, General Counsel, CVS Health (Feb. 1, 2023), https://ago.mo.gov/wp-content/uploads/attachments/2023-02-01-fda-rule—cvs-letter-tom-moriarty.pdf?sfvrsn=d42cfc2b_2 [https://perma.cc/LBS8-UF7Y].
58
See Press Release, Andrew Bailey, Missouri Attorney General, Attorney General Bailey Directs Letter to CVS and Walgreens Over Distribution of Abortion Pills (Feb. 1, 2023), https://ago.mo.gov/attorney-general-bailey-directs-letter-to-cvs-and-walgreens-over-distribution-of-abortion-pills/ [https://perma.cc/Q7MX-3MCD].
59
Mabel Felix, Laurie Sobel, & Alina Salganicoff, The Comstock Act: Implications for Abortion Care Nationwide, KFF (Apr. 16, 2024), https://www.kff.org/womens-health-policy/issue-brief/the-comstock-act-implications-for-abortion-care-nationwide [https://perma.cc/A8FR-43PX].
60
Id.
61
Transcript of Oral Argument, supra note 2.
62
Brief of Petitioner-Appellant at I, FDA v. All. for Hippocratic Med., No. 23-235 (U.S. argued Mar. 26, 2024).
63
Id. at 43-44.
64
Transcript of Oral Argument, supra note 2.
65
Judge Matthew Kacsmaryk was the judge at the district level for this case. See All. for Hippocratic Med. v. FDA, 668 F. Supp. 3d 507 (N.D. Tex. 2023).
66
Transcript of Oral Argument, supra note 2, at 47-48, 90.
67
Joint Appendix at 545, FDA v. All. for Hippocratic Med., No. 23-235 (U.S. argued Mar. 26, 2024).
68
FDA v. All. for Hippocratic Med., 602 U.S. 367, 368 (2024) (finding plaintiffs do not have Article III standing).
69
Application of the Comstock Act to the Mailing of Prescription Drugs that Can Be Used for Abortions, 46 Op. O.L.C. ___, 17–21 (2022).
70
Siegel & Ziegler, supra note 57 (citing Project 2025, Mandate for Leadership: the Conservative Promise 459, 562 (2023)).
71
See, e.g., Aaron-Andrew P. Bruhl, Supreme Court Litigators in the Age of Textualism, 76 Fla. L. Rev. 59, 60 (2024). (“Over the last several decades, the U.S. Supreme Court’s approach to statutory interpretation has shifted in a textualist direction. We know, for example, that the Court cites legislative history less than it used to. And the Court now uses textualist tools such as dictionaries and “whole code” textual inferences more often than it did a few decades ago.”).
72
Id. at 64.
73
Id.
74
Satanic Temple, Inc. v. Rokita, 2023 WL 7016211, at *2 (S.D. Ind. Oct. 25, 2023) (noting the Comstock Act of 1873 is “still in force today”).
75
Brunnstrom, supra note 22.
76
Id.
77
Smith, supra note 5 at 986 (“Attempts to repeal or modify the Comstock Act in the late nineteenth and early twentieth centuries were unsuccessful.”).
78
See Party Breakdown, United States House of Representatives Press Gallery (last visited May 7, 2024) https://pressgallery.house.gov/member-data/party-breakdown [https://perma.cc/BDQ5-BA3Y] (detailing the current Republican majority in the House of Representatives).
79
See, e.g., United States v. Arthur, No. 23-50262, 2024 WL 747250, at *1 (5th Cir. Feb. 23, 2024) (affirming lower court finding defendant’s operation of a website containing stories and drawings with graphic depictions of the rape, murder, and sexual abuse of children to violate 18 U.S.C. §1462(a)); United States v. Raymond, No. 21-380, 2023 WL 6294178, at *2 (D.D.C. Sept. 27, 2023) (charging defendant with a violation of 18 U.S.C. § 1462 for the transportation of photos and videos of unconscious women); United States v. Jakits, No. 2:22-CR-194, 2023 WL 5443894, at *1 (S.D. Ohio Aug. 24, 2023) (noting child pornography charges included one of transportation of obscene matters in violation of 18 U.S.C. §§ 1462(a)).
80
381 U.S. 479 (1965).
81
Id. at 485–486.
82
Felix et al., supra note 59.
83
Brunnstrom, supra note 22, at 12.
84
Id.
85
Pub. L. No. 110-85, 121 Stat. 823 (2007).
86
All. for Hippocratic Med. v. FDA., No. 23-10362, 2023 WL 2913725, at *20 (5th Cir. Apr. 12, 2023) (granting motion for accelerated approval).
87
Id.
88
Id. (citing Maine Cmty. Health Options v. United States, 590 U.S. 296 (2020)).
89
Simon, supra note 13, at 659; see also United States v. One Package, 86 F.2d 737, 740 (2d Cir. 1936).
90
Simon, supra note 13, at 659.
91
See supra notes 15–26 and accompanying text; see also Siegel & Ziegler, supra note 57, at 55.
92
Multiple states reacted to Dobbs by enacting measures to protect abortion access. Kansas became the first, as 59 percent of voters in August 2022 rejected a proposed constitutional amendment that would have paved the way for abortion bans. Later that year, voters in Michigan, California and Vermont voted to enshrine abortion rights in their state constitutions. In early 2023, the Minnesota legislature became the first to pass a bill, which the governor signed into law, guaranteeing the right to abortion. Erica Hensley & Jessica Washington, How major abortion laws compare, state by state, The Fuller Project (Oct. 9, 2024), https://fullerproject.org/story/how-major-abortion-laws-compare-state-by-state-map [https://perma.cc/5LD9-STQL].
93
Siegel & Ziegler, supra note 57, at 3 n.5 (discussing the first eight ballot initiatives to expand reproductive liberties since Dobbs and noting that all eight have passed). In 2024, Florida’s Amendment 4 became the first abortion-related measure to be decided in favor of anti-abortion advocates since Roe was overturned. Helen Brewer, 2024 Election Ballot Measures: Abortion, Drug Policy, Elections and More, NCSL (Nov. 8, 2024), https://www.ncsl.org/state-legislatures-news/details/2024-election-ballot-measures-abortion-drug-policy-elections-and-more [https://perma.cc/BZ84-3FXU]. It required 60% voter approval and received a majority of only 57%. Id. South Dakota’s 2024 ballot initiative is the other failed abortion amendment. Id.
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Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 300 (2022) (“States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.”).
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Transcript of Oral Argument, supra note 2 at 27 (calling the Comstock act a “prominent provision”).