Opinion: The Comstock Act and the continuing threat to women

FILE - Bottles of abortion pills mifepristone, left, and misoprostol, right, are shown, Sept. 22, 2010, at a clinic in Des Moines, Iowa. 

FILE - Bottles of abortion pills mifepristone, left, and misoprostol, right, are shown, Sept. 22, 2010, at a clinic in Des Moines, Iowa.  Charlie Neibergall/ AP


Published: 04-07-2024 4:00 PM

Jonathan P. Baird lives in Wilmot.

After the oral argument at the U.S. Supreme Court on the Mifepristone case, FDA v Alliance for Hippocratic Medicine, most pro-choice commentators breathed a sigh of relief. It appeared that the Court was not buying that the Alliance for Hippocratic Medicine had standing, a legal doctrine required to allow a case to move forward.

To have standing, a party must be able to show they have been injured in some direct way the Court could remedy. In this case, the harm was entirely speculative. The anti-abortion doctor plaintiffs argued a theoretical possibility of harm which was unpersuasive.

At stake is the future of medication abortion. According to the Guttmacher Institute, the medication Mifepristone figured in 63% of medical abortions in the U.S. in 2023. Based on the oral argument, it is unlikely this will be the case to ban medication abortion.

That said, the fact that this dumb case will not succeed in getting rid of medication abortion is not reassuring to reproductive rights supporters. The anti-abortion movement is looking to use a zombie law, the 1873 Comstock Act, to justify a national ban on abortion. Both Justices Alito and Thomas mentioned it in the oral argument with Alito calling it a “prominent” law.

Conservatives are looking to the Comstock Act as the vehicle to ban every single abortion in America whether in red or blue states. The Comstock Act was originally about banning pornographic literature, birth control and early abortion-inducing substances that were sent through the mail. It is extremely likely conservatives will try and revive this 19th century law which has been in deep sleep mode.

To appreciate the craziness of the Comstock law revivers, you need to look at who Anthony Comstock was. In his time in the later part of the 19th century, Comstock was one of the most feared and reviled men in America. The writer Amy Sohn, who authored “The Man Who Hated Women,” a biography of Comstock, wrote, “Comstockery and Comstockism came to connote prudishness, control, censoriousness and repression of thought.”

Sohn wrote that Comstock did more to curtail women’s rights than anyone else in U.S. history. He was an anti-sex freak who literally had no understanding of reproduction. He believed a fetus could form seconds after unprotected sex. He was horrified by pictures of naked bodies.

Comstock was a book banner. He bragged about removing thousands of books from circulation that touched on sex in any way. He was quick to place such books in the category of pornography. According to Sohn, Comstock, with no remorse, drove 15 people to suicide with his relentless prosecutions. He was against everything he considered obscene or that he believed suggested lust.

Roe v Wade had turned the Comstock Act into a dead letter but with that precedent overturned the anti-abortion movement plans to bring Comstock back from the dead. Mail is implicated in every abortion whether in clinics or by medication. All tools and medications come through the mail. The anti-abortion movement will either re-fashion the current Mifepristone case or bring new cases to the Supreme Court relying on the Comstock Act as their means to achieve a national abortion ban.

Democrats and all supporters of women’s rights should seek to repeal the Comstock Act. Congress previously repealed parts of the act connected to birth control but other parts of Comstock were never repealed. There is a legal argument that the law was set aside by a Court decision in 1930 but that will be part of the argument.

As a woman-hater, Anthony Comstock should be seen as one of the worst people in American history but the anti-abortion movement sees the law named after him as their fastest route to the result they want. They don’t care he was a misogynist.

It is not reassuring that FDA v Alliance for Hippocratic Medicine made it to the High Court. The story behind the case deserves mention because this is a meritless case that passes no smell test. A judge with no medical or scientific expertise found a medication unsafe despite the FDA’s long-standing approval of its use. Mifepristone has been used by 5.6 million women and research shows fewer serious risks than Tylenol.

The plaintiffs set up shop in Amarillo, Texas even though none of them had members there so they could judge-shop and get their case heard by Matthew Kacsmaryk, the only judge in that district. Kacsmaryk is an anti-abortion fanatic who Donald Trump appointed to the federal bench. Even though Mifepristone was approved by the FDA in 2000 and had been used safely for 24 years, Kacsmaryk ordered a nationwide ban against the use of Mifepristone.

The Fifth Circuit Court of Appeals, another hub of far-right Trump appointees, largely let Kacsmaryk’s decision go forward although his injunction was stayed pending the Supreme Court’s decision. Kacsmaryk relied on discredited medical studies and internet blog posts to make his case against Mifepristone.

The Supreme Court is not done with abortion issues this term. In April, in the case of Idaho v United States, the Court will determine if medical providers can continue providing abortions to pregnant women who are experiencing dire medical conditions. Idaho has a near-total ban on abortion. The state law conflicts with the requirements of the Federal Emergency Medical Treatment and Labor Act. The Biden administration is attempting to enforce the federal law.

This case also would not be happening if Roe had not been reversed. The federal law requires stabilizing treatment for any emergency medical condition. Idaho takes the position that necessary care will not be provided until the patient’s condition deteriorates to the point where a physician is “objectively certain” that an abortion is needed to save her life.

The consequences of delay could be devastating for women. Consequences of delay in the emergency could include sepsis requiring limb amputation, uncontrollable uterine bleeding, preeclampsia, hypoxic brain injury and permanent fertility issues. Since January 2024, the Supreme Court has allowed Idaho to enforce its law pending the Court’s decision.

The threat to women is not stopping. It is a mistake to see these cases as unrelated. They are part of the anti-abortion movement’s project of entrenching white Christian patriarchal dominance. The lawyers in both the Mifepristone case and the Idaho case are the same. They are from Alliance Defending Freedom, a far-right extremist organization that the Southern Law Poverty Center considers a hate group.

It is hard not to wonder what is next — will some ultra-conservative judge say birth control is unconstitutional? Don’t be surprised.