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Reviving The Comstock Act

A hundred years later, they still want to root around in your medicine cabinet

Trump wants to have it both ways in the election but I have no doubt that he will take revenge on the abortion rights movement the moment he gets into office. Here’s how he might do it:

The next Republican president could effectively ban most abortions through a simple policy change at the Department of Justice, experts and advocates on both sides of the abortion debate say.

While Republicans disagree about whether to pursue a national abortion ban that would face long odds in Congress, a GOP president may be able to unilaterally curb access to medication abortion across the country using an obscure 19th-century law.

At issue is the meaning of the 1873 Comstock Act, which banned the mailing of “obscene” material like pornography, as well as abortion drugs and contraception. While the law has been cut down over the years, the abortion provision remained but was ignored while Roe v. Wade was in place.

Medication abortion usually involves the use of two drugs, mifepristone and misoprostol, in the first 10 weeks of pregnancy, and accounts for more than half of abortions in the U.S.

The Heritage Foundation, which has proposed detailed policies for a potential GOP administration, argues that Comstock “unambiguously prohibits mailing abortion drugs” and says the next administration should “enforce federal law against providers and distributors of [abortion] pills.”

The Biden administration disagrees with this interpretation. A Justice Department memo issued last year contends that the law doesn’t prohibit mailing abortion drugs when the sender expects them to be used lawfully.

A new administration could easily change that interpretation, experts say, and not just restrict patients from receiving pills at home — but also stop pharmacies and health care providers from getting shipments.

“If Trump were elected, not only would I not be surprised, but I would expect the administration to direct DOJ to overturn its guidance on the Comstock Act and rule that shipping mifepristone through the U.S. Postal Service is a violation of that statute,” said Lawrence Gostin, a Georgetown Law professor who supports abortion rights.

This “would create a significant impediment to access to the most common, safest and most effective method of getting an abortion,” Gostin added.

The Trump campaign did not respond to a request for comment on its thinking about the Comstock Act.

They outsource their thinking on things like this to the Heritage Foundation. If Heritage wants it, Heritage will have it.

This is already on the menu in a major lawsuit anyway:

The Comstock Act is also invoked in a closely watched lawsuit challenging the Food and Drug Administration’s approval of mifepristone — in which Baptist is the lead counsel — which could reach the Supreme Court this term.

That lawsuit also argues that Comstock makes mailing abortion drugs illegal in the first place. However, that argument received little attention in lower courts, so the Supreme Court may not consider it.

Abortion rights advocates argue that interpreting Comstock so literally is ignoring its context and legal precedent.

They would almost certainly sue to block a DOJ policy change, leaving it to the courts — and possibly the Supreme Court — to decide.

“It’s tailor-made for a Supreme Court that considers itself textualist,” said Mary Ziegler, a UC Davis law professor and legal historian. “There’s a plausible argument that the language of the statute is unambiguous.”

Taking the statute so literally could have much broader implications for abortion, she added, extending to all forms of the procedure and even prohibiting it under circumstances like endangerment to the life of the pregnant person.

Ziegler said abortion rights supporters likely haven’t put much focus on Comstock to avoid legitimizing GOP arguments as courts consider the legality of mifepristone.

“I think it’s a fear that taking the Comstock Act too seriously would make it more likely that the Supreme Court will take it seriously,” she said

I hope they’re working on it behind the scenes just in case. Keep in mind that Comstock was also used to prevent women from obtaining birth control. The far right religious nuts like the man who is second in line to the presidency are all-in on that too:

AT THE LOUISIANA Right to Life Forum on Nov. 15, 2013, Mike Johnson — still lawyer, and not yet a public official — spoke about his efforts challenging the Department of Health and Human Services’ contraceptive mandate, a provision of the Affordable Care Act that required employers to provide birth control coverage as part of their insurance plans. 

In his view, Johnson explained, certain types of birth control are methods of abortion.

“Everybody asks us all the time: ‘Why do you guys care so much? The HHS mandate it’s really just about contraception, sterilization. … What’s the big deal? Well, those are abortifacients,” Johnson says. “The morning after pill, as we know, is an abortifacient.”

Neither sterilization or emergency contraception medications like Plan B, are abortifacients. Both are forms of birth control that prevent a pregnancy from occurring, but do not end an existing pregnancy. A representative for Johnson, now the speaker of the House of Representatives, did not respond to an inquiry about whether Johnson still believes those forms of birth control are “abortifacients.”

Johnson is known for being among the most anti-abortion lawmakers in Congress, and for railing against the use of “abortion as a form of birth control” before he was in office. But his statements and actions suggest he does not see much difference between abortion as a form of birth control and birth control as a form of birth control. 

As a lawyer, Johnson worked on multiple cases representing plaintiffs who refused to dispense, counsel, or provide emergency contraception, which they considered to be abortion-inducing drugs. And as a congressman, Johnson has repeatedly voted against efforts to expand, fund, or protect access to birth control and other family planning services — including for members of the military

While a certain, largely female segment of the Republican party has undertaken efforts to expand access to birth control in the wake of Dobbs, Johnson has not joined those efforts. 

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