One moment in particular, during Tuesday’s arguments over the availability of the abortion drug mifepristone before the Supreme Court, may have gone unnoticed ― despite its crucial importance.
Justice Samuel Alito, the conservative who authored the court’s 2022 decision overturning Roe v. Wade, eschewed plain language in a question to Solicitor General Elizabeth Prelogar about the Food and Drug Administration’s choice to expand access to mifepristone in recent years. Instead, Alito used a piece of official legal code.
“Shouldn’t the FDA have at least considered the application of 18 U.S.C. 1461?” he asked Prelogar.
The average listener is unlikely to recognize that this stray number in the federal register comes from an 1873 anti-obscenity law known as the Comstock Act. The exact provision Alito cited forbids the use of the mail for conveying “every article or thing designed, adapted, or intended for producing abortion.”
“This is a prominent provision,” Alito said. “It’s not some obscure subsection of a complicated obscure law.”
Alito’s seeming endorsement of the provision, along with that of Justice Clarence Thomas, was a stark moment during arguments that otherwise did not go well for the anti-abortion plaintiffs seeking to limit the distribution of mifepristone through telehealth providers.
“Justices Thomas and Alito were pretty clearly trying to roll out the red carpet for future claims even if this case doesn’t succeed,” said Mary Ziegler, a legal historian of the anti-abortion movement at the University of California, Davis, School of Law.
Anti-abortion activists are consolidating around the idea of resuscitating the 150-year-old law, which has not been enforced for some hundred years, as a way to ban abortion nationwide without passing new legislation.
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The Comstock Act’s abortion provisions have been legally dead since the 1973 Roe v. Wade decision legalized abortion nationwide ― but the court’s decision in Dobbs has potentially reanimated them. Anti-abortion activists now want former President Donald Trump to immediately enforce the provisions to prosecute abortion drug providers if he wins the 2024 presidential election.
“Following the Supreme Court’s decision in Dobbs, there is now no federal prohibition on the enforcement of this statute,” the Project 2025 transition plan organized by the conservative Heritage Foundation states. “The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills.”
The interpretation of the Comstock Act goes beyond abortion drugs like mifepristone to include a ban on the mailing of any medical device or equipment that could be used in an abortion setting. This would mean every company that produces devices or equipment that could be used for an abortion could face criminal prosecution if they deliver their products.
“We don’t need a federal ban when we have Comstock on the books,” Jonathan Mitchell, the Texas lawyer and strategist behind that state’s anti-abortion SB 8 law, told The New York Times in February.
Where Alito used the legal code to raise the Comstock Act in an indirect manner, Thomas was more explicit in questioning Jessica Ellsworth, the attorney for mifepristone manufacturer Danco Laboratories, about the law’s presumed ban on mailing anything that could be used for “producing abortion.”
“How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” Thomas asked.
Thomas added that he believed that Danco Laboratories, as a private business, is open to prosecution for violating the Comstock Act, which he said was “fairly broad” and “specifically covers drugs such as [mifepristone].”
The mifepristone case before the Supreme Court did not directly involve questions about the Comstock Act. However, the law was cited by both District Court Judge Matthew Kacsmaryk and a panel of the 5th Circuit Court of Appeals in their separate prior rulings limiting mifepristone access.
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While most of the justices focused on whether the plaintiffs in Tuesday’s arguments had standing to sue, the comments from Alito and Thomas on the Comstock Act were a signal to anti-abortion forces that they have at least two friends on the court for a future suit.
One such vehicle for a suit is already in motion in New Mexico, where Mitchell and Pastor Mark Lee Dickson helped conservative towns and cities on the state’s border with Texas to enact resolutions making them so-called “sanctuary cities for the unborn.”
These resolutions require abortion providers within municipal boundaries to obtain licenses where they state they will abide by the Comstock Act. Such a declaration would effectively mean they could not receive any drug or device that could be used in abortion, and thus could not perform abortions. Since abortion is legal in New Mexico, the state told the municipalities that their resolutions are unenforceable. The municipalities are now suing the New Mexico government in state court to be able to enforce their resolutions.
But the real message Alito and Thomas sent is to a prospective Trump administration, which could begin enforcement of the Comstock Act on day one — which, in turn, would likely lead to a prosecution and a lawsuit challenging the law’s enforcement.
“The idea is that if Trump is in the White House, the Supreme Court would have no choice but to confront the Comstock Act because Trump would essentially force the issue,” Ziegler said.
Alito and Thomas have now also signaled their confirmation that at least two justices agree the Comstock Act is not a dead-letter law, and that they are willing to entertain it as groundwork for an ultimate ban on mailing anything used for abortion. It’s a confirmation anti-abortion activists needed.
