Possibility of a national abortion ban raises its head at the Supreme Court

During Tuesday’s Supreme Court arguments on the availability of the abortion drug mifepristone, there was a significant moment that may have been overlooked, despite its crucial importance.

In a question directed to Solicitor General Elizabeth Prelogar, Justice Samuel Alito, the conservative judge responsible for the court’s decision to overturn Roe v. Wade in 2022, opted for legal jargon rather than plain language. Alito referred to a specific section of the official legal code when discussing the Food and Drug Administration’s decision to broaden the availability of mifepristone in recent times.

Prelogar was questioned by him about whether the application of 18 U.S.C. 1461 had been considered by the FDA.

The average person may not realize that the random number mentioned in the federal register originates from an 1873 anti-obscenity law called the Comstock Act. Specifically, Justice Alito referenced a provision in the law that prohibits the use of the mail to transport any item or substance that is meant to facilitate abortion.

According to Justice Alito, this provision holds significant importance and should not be regarded as a minor part of a complex and obscure law.

During the arguments, Justice Alito and Justice Thomas appeared to endorse the provision, which stood out as a significant moment. This occurred in a session that was otherwise unfavorable for the anti-abortion plaintiffs who aimed to impose restrictions on the distribution of mifepristone through telehealth providers.

According to Mary Ziegler, a legal historian of the anti-abortion movement at the University of California, Davis, School of Law, Justices Thomas and Alito’s intention seems to be paving the way for future claims, even if this particular case does not succeed.

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Anti-abortion activists are rallying behind the idea of reviving a century-old law that has remained dormant for many years. Their aim is to utilize this law as a means to prohibit abortion across the entire nation, thereby circumventing the need for new legislation.

Supreme Court Justices Clarence Thomas and Samuel Alito both indicated their agreement that the Comstock Act, which has been in existence for 150 years, prohibits the mailing of any items that may result in an abortion.

The provisions of the Comstock Act pertaining to abortion have been rendered legally invalid since the landmark Roe v. Wade ruling in 1973, which legalized abortion across the United States. However, the recent Dobbs decision by the court has the potential to revive these provisions. Consequently, anti-abortion activists are urging former President Donald Trump to enforce these provisions and prosecute providers of abortion drugs if he is successful in securing the 2024 presidential election.

According to the Project 2025 transition plan, organized by the conservative Heritage Foundation, the recent Supreme Court decision in Dobbs has removed the federal prohibition on the enforcement of a certain statute. The plan suggests that the Department of Justice, in the next conservative Administration, should announce its intention to enforce federal law against providers and distributors of these pills.

The interpretation of the Comstock Act extends beyond just abortion drugs like mifepristone. It also includes a prohibition on the mailing of any medical devices or equipment that could potentially be used in an abortion setting. This implies that any company involved in the production of such devices or equipment could potentially face criminal charges if they choose to deliver their products.

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In February, Jonathan Mitchell, the Texas lawyer and strategist responsible for the state’s anti-abortion SB 8 law, expressed his belief to The New York Times that a federal ban is unnecessary since they already have Comstock in place.

During the questioning, Justice Thomas directly addressed Jessica Ellsworth, the attorney representing Danco Laboratories, the manufacturer of mifepristone. He explicitly questioned the presumed ban on mailing items that could potentially be used for “producing abortion” as stated in the Comstock Act.

Thomas inquired about how to address an argument claiming that sending out your product and promoting it would be a violation of the Comstock Act.

Thomas stated his belief that Danco Laboratories, as a private business, can be prosecuted for violating the Comstock Act. He emphasized that the act is quite comprehensive and explicitly addresses drugs like mifepristone.

The Supreme Court case regarding mifepristone did not directly address the Comstock Act. Nonetheless, both District Court Judge Matthew Kacsmaryk and a panel of the 5th Circuit Court of Appeals referenced the law in their previous decisions that restricted access to mifepristone.

Protesters gather and engage in heated debates outside the Supreme Court while justices listen to arguments regarding FDA regulations aimed at enhancing accessibility to the abortion medication, mifepristone, on March 26th.

During Tuesday’s arguments, the majority of the justices primarily discussed the issue of standing to sue for the plaintiffs. However, Justices Alito and Thomas made notable comments regarding the Comstock Act. These remarks serve as a clear indication to anti-abortion advocates that they potentially have the support of two justices on the court for any future legal challenges.

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In New Mexico, there is already a movement led by Mitchell and Pastor Mark Lee Dickson to establish conservative towns and cities along the state’s border with Texas as “sanctuary cities for the unborn.” These resolutions aim to provide legal protection for the rights of the unborn.

Abortion providers within municipal boundaries must obtain licenses and declare their compliance with the Comstock Act, which prohibits the use of any drugs or devices for abortion procedures. This declaration would essentially prevent them from performing abortions. Despite the legality of abortion in New Mexico, the state has deemed these resolutions unenforceable. As a result, the municipalities have filed a lawsuit against the New Mexico government in state court in order to enforce their resolutions.

Alito and Thomas’s true message is directed towards a potential Trump administration. They are signaling that such an administration could take immediate action to enforce the Comstock Act. This would likely result in a prosecution and subsequent lawsuit questioning the enforcement of the law.

According to Ziegler, the notion is that the Supreme Court would be compelled to address the Comstock Act if Trump were to be in the White House, as he would effectively raise the issue.

Alito and Thomas have recently expressed their support for the Comstock Act, indicating that they believe it is still a valid law. This confirmation is a significant victory for anti-abortion activists, as it suggests that the Act may serve as a foundation for a future ban on mailing items used for abortion.

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