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Supreme Court Conservatives Seem Pretty Intrigued by Law That Could Ban Abortion

Justices Samuel Alito and Clarence Thomas are just asking questions about the Comstock Act, a 150-year-old obscenity law that anti-abortion activists believe could be revived as a national abortion ban.

The Supreme Court heard arguments on Tuesday in Food and Drug Administration v. Alliance for Hippocratic Medicine, a case that centers on access to mifepristone, a critical component in the abortion pill protocol, the most widely used method of abortion nationwide. According to the Guttmacher Institute, 63 percent of abortions in the U.S. last year were medication abortions.

The Court is considering whether certain restrictions on mifepristone that were lifted in recent years should be reinstated. In 2016, the FDA revised its guidance based on evidence that showed the medication was safe and effective to terminate pregnancies through 10 weeks gestation (it was previously only recommended up to seven weeks). Five years later, at the height of the pandemic, the Biden administration removed a requirement that the pill be dispensed in-person too.

Generally, the justices seemed skeptical about the plaintiffs’ effort to make mifepristone harder to obtain.

But during oral arguments on Tuesday, conservative Justices Alito and Thomas seemed very interested in one particular piece of the argument that the plaintiff’s lawyers made: that the FDA’s efforts to expand access to mifepristone violated the Comstock Act, an 1873 law that criminalized the circulation of “obscene, lewd or lascivious” publications, as well as “any article or thing designed or intended for the prevention of conception or procuring of abortion.”

Comstock has been effectively dead since the early 1970s, when the Supreme Court recognized rights to access contraception and abortion (before Roe was decided, federal courts held Comstock only applied to unlawful abortions). But the law was never repealed, and since the court struck down Roe in 2022, anti-abortion advocates and activists have argued that Comstock could and should be revived by a willing president.

One of the main proponents of the idea is Jonathan Mitchell, Texas’ former solicitor general who rose to prominence as the architect of the state’s abortion bounty law. “We don’t need a federal ban when we have Comstock on the books,” Mitchell recently told The New York Times. “There’s a smorgasbord of options.”

Mitchell added, speaking of former President Donald Trump, his own client in a separate Supreme Court case: “I hope he doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth,” presumably concerned that widespread awareness of the law could turn off voters. “I think the pro-life groups should keep their mouths shut as much as possible until the election.”

Alito and Thomas don’t seem to have gotten the memo about keeping their mouths shut: both asked pointed questions about Comstock during Tuesday’s oral arguments.

Using the law’s statutory code  — a move favored by anti-abortion activists — Justice Alito asked Solicitor General Elizabeth Prelogar, “Shouldn’t the FDA have at least considered the application of 18 USC 1461” when ending the requirement that the pill be dispensed in person.

Alito added that the law, which has been languishing unused for decades, is “a prominent provision, it’s not some obscure subsection of complicated obscure law.” Prelogar answered that FDA rules are very clear: the only things that can be considered when changing such a requirement are safety and efficacy. She added that the Office of Legal Counsel had advised the FDA that Comstock does not prohibit the mailing of abortion pills.

Thomas was more blunt as he questioned a lawyer for Danco Laboratories, manufacturer of mifepristone: “How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” He added the statute “is fairly broad, and it specifically covers drugs such as yours.” The lawyer responded that the law had not been enforced in decades and “I don’t believe that this case presents an opportunity for this court to opine on the reach of the statute.”

The case the Court heard on Tuesday was originally filed by the Alliance for Hippocratic Medicine — a group that appears to have been purpose-built for taking down the abortion pill. The alliance is a coalition of existing anti-abortion medical organizations, including the American Association of Pro-Life Obstetricians and Gynecologists, and the Christian Medical and Dental Associations, each of which has unsuccessfully challenged FDA approval of mifepristone in the past.

The Alliance for Hippocratic Medicine was legally incorporated in Amarillo, Texas, in July 2022, shortly after Matthew Kacsmaryk, a young, ideologically motivated culture warrior was appointed to the bench in the Amarillo division of the Northern District of Texas’ in the U.S. District Court.

The gambit worked: Kacsmaryk blocked the FDA’s approval of mifepristone and called for the drug to be taken off shelves nationwide. The FDA, along with the manufacturer, Danco, appealed the decision, first to the Fifth Circuit, and later to the Supreme Court, which granted a stay, blocking Judge Kacsmaryk’s order in full while litigation continued.

The abortion pill is popular because it is non-invasive and its side effects (cramping, heavy bleeding) are relatively mild. Mifepristone, it’s often noted, is safer than Tylenol or Viagra, but it has been more heavily regulated than fentanyl since it was introduced in the U.S. in 2000.

According to the FDA, more than 5.9 million women have used Mifepristone, which is taken with its companion drug, Misoprostol, to terminate unwanted pregnancies in America, since the abortion pill became available in the United States more than two decades ago.

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