The Supreme Court said that it wanted to stop making decisions on abortion in its Dobbs decision, reversing Roe v. Wade. But guess what? Abortion is back, and it is likely to come back again, even after recent oral arguments on the abortion pill, pitting a drug maker and the Food and Drug Administration (FDA) against anti-abortion groups, and the next case on April 24, which deals with emergency care and abortion. Why? In last month’s oral argument, Justices Clarence Thomas and Samuel Alito raised a little-known statute called the Comstock “Chastity” Law, passed during Ulysses S. Grant’s administration in 1873. Even if the FDA wins this case, Donald Trump and his allies, including the conservative groups behind the MAGA policy blueprint, Project 2025, aim to revive Grant’s handiwork—to bar the mailing of abortion pills. The Heritage Foundation agrees, and so do Republican Senators who have filed a brief on the issue. The Court may side-step Comstock in the mifepristone case, but if it does, it will come right back to the Court.
Far from settling the abortion controversy, Dobbs unearthed seismic legal controversies long thought buried. When the FDA approved telehealth abortion treatment, Roe was the law of the land. But now Roe is gone, and so the Court is slated to hear a case on whether the FDA properly approved the abortion pill. Many noted that immediately after Dobbs, a variety of state laws created in the 19th century were instantly revived to ban abortion. We just saw that last week when Arizona’s ancient abortion law was resurrected. What most of the briefs in this case never mention is that Dobbs also resurrected the Comstock law, a federal statute that would ban the mailing of abortion pills to effect an abortion.
In the mifepristone case, the lawyers argued whether the plaintiffs were the proper parties to challenge the law. (Do they have what lawyers call “standing?”) Citizens would be forgiven for missing the term Comstock from the government’s advocate, Solicitor General Elizabeth Prelogar’s lips, or Justice Thomas’s or knowing it is an ancient 1873 chastity law. But Judge James Ho’s opinion in the Fifth Circuit argued that the FDA violated Comstock. The solicitor general argued that the FDA did not have to apply Comstock because of its authorizing statute. Still, in theory, the FDA has to abide by all laws under the Administrative Procedure Act, including Comstock. Even if this case is dismissed on standing grounds and counts as a win for advocates of legal abortion, Comstock is not going away
The solicitor general relied upon the Justice Department’s Office of Legal Counsel’s opinion that Comstock should be narrowly applied. But the opinion is not going to stop those who believe Comstock bars the mailing of abortion pills, as emphasized by both the anti-choice lawyer defending the Fifth Circuit opinion and Justice Thomas. The DOJ opinion depends upon a lengthy analysis of various 20th-century courts of appeals cases refusing to apply the law’s strictures, mainly decided in the 1930s. These cases impose an intent requirement on those alleged to violate the law. It also argues that Congress ratified those court decisions in the 1970s when it eliminated the contraceptive mailing ban in Comstock but left the abortion language. Moreover, even if that interpretation is accepted, it means a doctor who prescribes an abortion pill to someone in a state that they know limits abortion, could be covered by Comstock.
The bet among liberal lawyers is that the Court will decide the mifepristone on grounds other than Comstock. But liberals have often been unduly optimistic about the Roberts Court. Six justices who think that you have to interpret a law by its original meaning will look at Comstock’s text as it was written in the 19th century and, as Judge Ho writes, find that it pretty clearly makes it a crime to mail or use the internet in prescribing abortion drugs. Six justices also believe that the Administrative Procedure Act means what it says when it provides that no agency may act in ways “not in accordance with law.” And we expect Justices Alito and Thomas, in dissent, will emphasize Comstock. In short, the makers of mifepristone need a strategy to fight Comstock, whether it is decided in this case or in the future.
There is another way to defuse the Comstock time bomb, and one more persuasive to most of the justices: argue this as an originalist would. As scholars have pointed out, the “original” 1873 meaning of abortion and procuring an abortion is unclear; at the time, “abortion” may have meant what we now call “miscarriage” and “was not generally a crime.” It definitely was not a crime to save a woman’s life, and that reading held throughout the 20th century. Unfortunately, the Dobbs’ decision’s claim that abortion has always been criminalized does not take that history into account. Moreover, as the Justice Department has emphasized, Congress amended the statute after 1873 in ways that should and could affect the Court’s reading of that term. As we have written elsewhere, focusing solely on a single term can “gerrymander” the text by leaving out other terms; in this case, focusing on abortion alone reads out the rest of the statute, which addresses “drugs and medicine,” as well. The “best” interpretation of the statute—the court’s current standard—must account for all its terms.
Another tactic is to shift from law to facts. Originalists believe that law is fixed, but facts may change. If facts change, that means that the law’s interpretation must change. Just because cell phones geolocate, that does not mean the Fourth Amendment, ratified two centuries ago, has no bearing on your iPhone. Here, the facts have changed about abortion drugs; what was known or held in 1873 about their safety should not control today. Then, drugs were unregulated and frequently killed. No longer. As a new article in Nature Medicine shows, less than 1.3 percent of abortions via telehealth led to emergency room visits. That argument is consistent with cases decided under Comstock throughout the 20th century—which, over and over again, deferred to legitimate medical procedures. At the time, the public pushed back, making “Comstockery” a moniker of mockery for any political or literary argument that was outdated or puritanical.
This factual change reflects a consistent tradition of legislative action on an “overall regulatory regime” that supersedes the Comstock law on the safety of the “drugs” or “medicines” specified in the statute. In 1906, Congress began laying a tradition in which drugs were to be regulated by a scientific agency that would become known as the FDA. Congress reaffirmed and expanded that law in 1938, 1951, 1962, 1976, 1980, 1983, 1994, 1996, and 1998. Long periods of statutory tradition—a hundred-year-old tradition in this case—in which “many acts” can reveal an “overall regulatory regime” provide essential reasons to believe that Congress did not mean for the Post Office (in charge of enforcing the Comstock Act) to control the safety of medication.
If the Court wishes not to make a mockery of itself by relying upon Comstockery, as even Saturday Night Live lampooned in the Dobbs decision, and it really wants to put the abortion pill issue to bed, it should invoke the late, ever-moderate Justice Sandra Day O’Connor and the long tradition of regulation to hold that the Comstock law does not cede regulation of health to the U.S. Postal Service. As she explained, no matter how important, an agency may not regulate “in a manner inconsistent with the administrative structure that Congress enacted into law.” If the Court does not address the Comstock issue now, the abortion pill issue will return.
