The 150-Year-Old Law that Could Impact Abortion Pill Access Today

The Comstock Act, a 150-year-old law named after “anti-vice” crusader Anthony Comstock, passed in 1873. It allowed enforcement power to investigate the U.S. mail for items of an “illicit,” “lewd,” or “immoral” purpose, including items related to abortion. Greer Donley, Associate Professor and Reproductive Justice Scholar at University of Pittsburgh Law School, sits down to talk with us about the Comstock Act—what is it, what it means, and how anti-abortion activists are working to revive it.

Today, the courts are packed with extreme conservative judges and Trump-appointees who maintain a vested interest in maintaining the act as a strategy to ban abortion pills and procedural items sent through the mail. To combat the Comstock Act and its ability to further decimate reproductive health and rights, Comstock must be completely repealed, and a presidential administration that doesn’t enforce Comstock is necessary. The president, who also has the power of pardoning, can pre-pardon anyone later convicted within the 5-year statutory period of a Comstock-related crime before leaving office.

Links from this episode

More information on the Comstock Act
Greer Donley on Twitter
Abortion Pills by David S. Cohen, Greer Donley, and Rachel Rebouche
Opinion: It’s too dangerous to allow this antiquated law to exist any longer
Plan C
Abortionfinder.org
Ineedana.com
Repro Legal Helpline
Repro Legal Defense Fund
Digital Defense Fund

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Transcript

Jennie: Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. [music intro]

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Hi rePROs! How's everybody doing? I'm your host Jennie Wetter, and my pronouns are she/her. So y'all, I feel like a lot has been going on. Let's see, recently I went out for dinner with some friends that I hadn't seen in a long time, and it was so, so wonderful to get to catch up with them. The downside is I got home, and my kitchen was, like, flooded. My dishwasher had started leaking, and so, like, scrambled and threw a bunch of towels down and tried to figure out what was going on. And I went to try to do the emergency water shutoff, and I couldn't get it to work, and I kept trying and it wouldn't turn. And I just had visions of me snapping the valve. So, I had to quit because like, I just- it was gonna break. I could feel it, like, it was gonna break and I was gonna have like 10 times the flood and I was gonna have to have like an emergency plumber visit in the middle of the night on a Friday night. And that sounded terrible. So, I was able to, like, I could make my dishwasher drain so I could drain it, but then it kept, like, refilling. So, I had to get up like every hour all night to try and get my dishwasher to drain and had to keep putting towels down. And like, it didn't really leak that much more after the first big leak overnight because I kept getting up and draining it. And then I was lucky enough to have someone come to repair my dishwasher. And luckily it wasn't, I didn't need the whole thing replaced because I really thought that was gonna be the case because it's getting kind of old. But what made me feel better is—listen, I'm kind of a handy person. I'm not super handy and like doing all the things on my own, but, like, I'm handy enough. Like that was something that my dad made sure of, like, I did lots of work side by side with him when I was little and he made sure I was fairly handy, but the guy who came to prepare my dishwasher also couldn't get my water shut-off valve to work. And so, that made me feel better that it wasn't just me being incompetent like that there was actually a legit problem with it, which means I also need to call a plumber and get my water shut-off valve replaced because it's not good. But anyway, that was an excitement that I did not want over my weekend. Yeah, not fun. And then last week I had had jury duties that I had to go for which, you know, I don't mind like having to go, like, civic duty and all that, but it was really stressful to have it on a Tuesday when we were releasing a major report—our 50 state report card available now online, go check it out—on Thursday. So, it was just like me trying to get everything done in case I had to sit on a jury and was out for like a week or more while this report was gonna launch while I wasn't there. So, it was just really stressful, like trying to get everything together and all the last-minute bits done before I left on Tuesday. And luckily, I just had to go on Tuesday. I got dismissed in the early afternoon and didn't get selected. So, that was at least some added stress taken off my shoulder, so that was good. But the report's out now. It looks gorgeous. I hope you all check it out. You can see it at reprofightback.org/reportcard. Find out how your state is doing. Spoiler: a lot of them are doing real bad. I think we had 30 states get a D or lower and only five states get an A. So, not looking great, but so you should definitely go check it out. Okay. And that brings us to today. Today, the Supreme Court is hearing oral arguments in the first of two abortion cases this term. And so, I couldn't think of a better person to come on and talk about what was happening today and part of the bigger conversation as well around the Comstock Act than Greer Donley at Pitt Law School. So, I'm so excited to have Greer here today to talk with us about the mife case in front of the Supreme Court, and then also kind of a bit of a broader conversation around Comstock. So, let's go to my interview with Greer. Hi Greer, thank you so much for being here!

Greer: Thanks for having me.

Jennie: Before we get into the nuts and bolts of this episode, do you maybe wanna take a quick second and introduce yourself and include your pronouns?

Greer: Absolutely. My name is Greer Donley, she/her, and I'm an associate professor at the University of Pittsburgh Law School. I'm a reproductive justice scholar and I primarily work on the issues of abortion and pregnancy loss.

Jennie: So, I'm really excited to have you on today because we're gonna talk about something that, like, I feel like has been getting a lot of attention lately and it's, like, a 150-year-old law. Like why, why? But before we get into why I should care, maybe we should start with: what is the Comstock Act?

Greer: Yes. So, the Comstock Act—hopefully some of your listeners have heard this before, I'm really hoping that's true—it's a law from 1873, so, 150 years ago, passed before women had the right to vote, which is named after a person, Anthony Comstock, who was an anti-vice crusader. So, this person was one of the people very much leading the movement in the late 1800s to try to criminalize contraception and abortion. So, one of the ways they did that was he convinced Congress to pass a law that criminalized a lot of things, but really the primary way that it did so was through the mail. So, Comstock ended up leading the post office, so he had this enforcement power through investigating the mail. And Congress can always pass laws that are related to interstate commerce. So, the law basically banned using the mail for anything that could be considered for a moral illicit or lewd purpose, and specifically included within that articles for abortion and contraception. So, the law has gone through many iterations right before Roe and Griswold—the cases that created the right to abortion and the right to contraception—came down. And then, in the 1930s, you had a series of cases where the courts were kind of limiting and interpreting the scope of Comstock, particularly related to contraception. But eventually the laws fell out of disuse. Even in the 1930s, the laws stopped being enforced. And then, of course, when Griswold and Roe were decided they were presumed unconstitutional, but just never removed from the books. Ever since Dobbs, we have had a group of extreme anti-abortion activists who are trying to bring it back to life and are kind of doing everything they can to do that.

Jennie: Okay. That was like a really good, like, primer. So, why should we care now? They're trying to bring it back to life but, like, it's a 50-year-old law, like, it can't do anymore damage, right? Right?

Greer: I wish that were true, right? I think that there are many different ways in which the courts should, you know, refuse to find that Comstock is still good law. There's a lot of different ways that the courts could kick that can and could say, "hey, this law hasn't been used. This law doesn't mean exactly what it says.” There's a lot of different ways that courts could not let this law come back to life in a way that bans abortion nationwide. But the problem is that, as we've seen in the last, really the last decade, but particularly the last five years or so, you have courts that are packed with extremist Trump appointees and judges all the way up to the Supreme Court who seem pretty, you know, aggressively bent on trying to adopt anti-abortion views. And this one, unfortunately, is one of the ones that's not a really easy call. So, the law is still in the books and the law, by its terms, bans using the mail for any article or thing that could be used for abortion and contraception. If you take that to its logical extreme, it would ban mailing any abortion pills, but also any sort of instruments that are used for procedural abortion. So, that's the way that these anti-abortion extremists are gonna try to say, "hey, just follow the plain letter of the law. If you follow the plain letter of the law, this is a clear national abortion ban already on the books just waiting for the Republican administration to come in and enforce it." So, the only reason this law is not being enforced now is because Biden is the president, which means Biden has appointed the head of the Department of Justice—the federal prosecutors who enforce federal law. And the Department of Justice under Biden has issued a memo kind of agreeing with all the cases from the 1930s that had limited the text of the law to say it only applies for shipping of things used for unlawful abortion. And the reason why the courts had to do that in the 1930s is that the law on its face has no exception whatsoever, including for the life of the pregnant person. So, if we don't limit it to unlawful abortions, then it creates this insane possibility of banning abortion nationwide without exception, right? Like, it truly shocked the conscious kind of result. And the Department of Justice went so far as to say, like all those cases from the 1930s, because they only apply, make it clear that Comstock only applies for unlawful abortions, not only does it protect the mails for states where abortion is legal, but it also protects using the mail into states where abortion is illegal. So long as the instruments and the medications being shipped there are not done with the specific intent to cause an unlawful abortion. So, people might be shipping them in, the pills in particular, for the use in miscarriage or the use in rape or incest abortions when those are permitted, for health-saving abortions when those are permitted, right? So, the Department of Justice really takes a view, which I agree with, that says that the law has to be interpreted more narrowly as it was in the 1930s. And when that's the case, it becomes clear that this is only going- this statute is very narrow, but we have, you know, very aggressive anti-abortion activists saying, no, no, that interpretation from the 1930s was all what lawyers and law professors called dicta, it wasn't completely binding because contraceptive parts of the kind of before textualism, which is a theory of statutory interpretation where judges really stick to the text and don’t modify it in any way, came to prominence now. And so, you have conservatives, in particular, but judges all over the ideological spectrum that often try to apply the text exactly as it was written. And if you read this narrow text in isolation, right, it does seem to suggest what the anti-abortion activists say it does. But of course, there's so many reasons why we, you know, we cannot accept that interpretation and why the courts refused to in the 1930s. Not only are there no exceptions, but of course the other reality being that it would create a national ban without the legislature passing any new law. It's fallen out of disuse. It would create due process concerns. It would lead to absurd results, all the types of things that sometimes courts in extreme cases—and I would argue this is very much an extreme case—would say, no, no, we don't, we can't apply that, that law doesn't- this is not a situation in which we should just apply the text as written for a variety of extremely important substantive reasons, unfortunately, right? Again, the law is what judges say. So, when you have these two warring interpretations the judge makes the call. And when the judge that makes the call is Judge Kacsmaryk in the Western District of Texas, or Judge Ho on the Fifth Circuit, or Justice Alito, the Supreme Court, you know, you have a result that you might think is quite unjust and quite wrong. And so, it's a real risk. It's uncertain how judges will interpret Comstock. We don't know the answer to that question, in part because President Biden is not enforcing it right now. But if a future President Trump were to start enforcing the law, the courts would start interpreting the statute in a very, very specific way. And even just the threat that it could be used might chill abortion provision across the whole country.

Jennie: Well, and my assumption, like, hearing how it was written, like it wasn't super narrow, right? Like, the "immoral," like, the language in it, I assume that it could also apply to other things. As we know, there are very close ties between the movements trying to restrict abortion and gender-affirming care. It just makes me think that that could also be a threat. Or am I-

Greer: Absolutely, right-

Jennie: -wrong? I think I could be wrong because I'm not a legal person.

Greer: I mean, I think that that is certainly true, right? There is that argument. I think that that is a little bit less of a dire threat because that's not a term specifically written into the statute, so they would be hoping theoretically to get that in under the "immoral use”—that really vague provision. I think that there are a lot of First Amendment folks who think that those parts of the statute are gonna be unconstitutional under First Amendment grounds and otherwise for vagueness reasons. The part that I think is most concerning for abortion is because of, you know, the fact that it literally says the word abortion and contraception. That's not to say, like, that's- I think one thing that's been surprising to me is how often I'm surprised in this post-Dobbs world. Like, there have been so many times where I'm like, "well, they really wouldn't go that far," or "that is really a laughable argument. No one's gonna believe that.” Only to be shocked that now we're in a new world where it's like, well, that's- okay, I guess that we're talking about that now. How are we talking about that now? So, I wouldn't say that, you know, that gender-affirming care is safe by any means under the statute, but I think it's a little bit less of a direct threat.

Jennie: Well, that is at least some, like, small, good news.

Greer: Yeah.

Jennie: Okay. So, this episode is coming out on the day when mifepristone is in front of the Supreme Court, and Comstock comes up in this as well. Well, let's talk a little bit about the case that is in front of the court today.

Greer: Yes. So, this case is concerning the first drug in a medication abortion that's called mifepristone. And particularly, the defendants here are- the primary defendant was our Food Drug Administration. So, plaintiffs, which are a group of anti-abortion physicians, argued that the FDA improperly approved mifepristone, which is the only FDA-approved drug to terminate a pregnancy. And that every time it has changed its regulation of the drug—which is very common, FDA routinely kind of updates its labels and stuff like that—the plaintiff's here say that every time the FDA did that it was improper, right? Because every time the FDA, you know, the FDA, when it first approved the drug, approved it with these excessively burdensome regulations that in my mind we're always about abortion exceptionalism. And as time went on and more and more researchers were studying the drug, it became very clear how safe this drug was and how effective it was. And so over time, the FDA started to remove some of these unnecessary restrictions. Probably the first big one happened in 2016, and the second one happened—depending on when you count—between 2019 and 2021. So, that second one being when the FDA removed the in-person dispensing requirement and allowed medication abortion to be shipped by mail. It's probably pretty obvious to listeners why that second change related to mailing is relevant because Comstock, by its terms, bans the mailing of inducing drugs. But the plaintiffs here have also argued more generally that the FDA didn't have the power to approve the drug from the beginning because of Comstock, right? Comstock made this illegal matter from the get-go. So, right now, this case, the kind of issues in this case have been narrowed a little bit by procedural history. But the Supreme Court is considering whether or not the changes in 2016 and the changes in 2021 were appropriate. And Comstock is one of the things that's at issue, whether or not Comstock, you know…so the most obvious parts of the case relate to whether or not the FDA using food and drug laws approved the drug appropriately. But a second issue is whether or not Comstock interferes with FDA law in a way that made it inappropriate for the FDA to approve the drug. And then of course, for those of you who have been paying attention to this a little bit, there's also very important procedural questions about standing. In particular, whether or not these physicians should have the ability to bring this case from the very beginning.

Jennie: You know, I feel like there's multiple scenarios that could play out in this case, and I think that it's really important to know that even if there's like a narrow loss, like, it could still have a really big impact on abortion access. If they roll back the rules, it's really going to impact who can access care because each time they have updated the label, it has expanded the number of people who can use It.

Greer: It's so important, right? I mean, I think that even if we have a loss that's just reposing the in-person dispensing requirement, which, you know, in my opinion, I think that's...if I'm being really honest, I think that's probably, that's my prediction of the outcome. I have no insider information and I'm wrong all the time, but that's kind of like what I think might be the ultimate result here, which would be a pretty devastating impact if that were the case. It would be a devastating impact if that were the case. So, why? Well, because, from the very beginning, the in-person dispensing requirement has created enormous challenges for people. It is not easy to find a brick-and-mortar abortion provider in this country. I mean, I'll talk about how Dobbs has made that enormously harder, but even in places where abortion is permissible, it's not, it still might be forcing you to travel hundreds of miles to the closest brick and mortar abortion provider, especially for folks who live in rural communities. But even for folks who live in cities that are close to an abortion provider, for many people, the logistics of having to do in-person care are devastating, right? They can be costly. Most abortion patients are already parents, so for many of them, they have to find childcare. For most abortion patients, the vast majority, 75% are poor or low-income. They have to figure out just the cost of getting to the clinic sometimes when they don't have a car. Those are the types of things that can make it really hard for people to get access to care. And so, we know now there's a ton of research that shows that abortion can be done safely and effectively through telehealth at home. We're moving those barriers. And so certainly reposing, the in-person dispensing requirement would be really hard on patients. But to add to that, now we have the post-Dobbs world where we're talking about the virtual clinics, the clinics who only provide telehealth abortions have been really helping deal with the surge of patients that are coming into blue states. If that wasn't permissible anymore, if you stopped having providers providing telehealth abortions the clinics literally do not have capacity. They're at the brink right now, right? So, if you have the swell of patients that would have to come in in-person for every single abortion, like, the wait times would go from, you know, already in some places it's weeks to months. It would really- potentially could collapse the whole abortion ecosystem. Now, would it recover? Potentially, right? Like, more clinics could pop up. But in the short term, we’re just talking about more and more chaos, right? Dobbs has been defined by so much chaos. To me, it's also a strong possibility that the court kicks the case completely on standing, right? There are so many reasons for the court to say, here, this is a bad case, let's not touch it. The providers have no business in bringing this lawsuit, right? So, I also think, you know, 60-40, that's my 40%, right? I think that there's a strong possibility that the court kicks the case completely, and you see some really strong concurrence or dissent about Comstock setting up for a future Comstock case, right? In my opinion, there's gonna be some justices who write about Comstock, period. The question is whether or not they're going to be in any sort of a majority holding or if it's going to be a dissent and concurrences in a way to kind of say, "hey, anti-abortion folks, we hear you bring us a better lawsuit so that we can agree with you in the future." But, like you said, even if we have kind of a narrow loss, the narrow loss has significant impacts.

Jennie: Yeah. And just thinking for people who may not be super familiar, right, like, hearing that, okay, it could delay access to clinics for like a week or a couple weeks but, like, abortion is time-sensitive for obvious reasons, but that's the difference between needing a medication abortion versus a procedural abortion. The price goes up, like, that clinic might only do medication abortion, now you have to travel to a different one to get a procedural abortion. Like all of these things, it puts the cost higher, which again, puts access out of reach for people. So, all of these factors, all of these outside factors make it so much harder for people to access care.

Greer: Absolutely. And one thing I also think we don't talk about enough in this particular conversation is like, it's not just logistical burdens, which can be devastating, but it's like for people who've never been pregnant before, I think I was one of these people who before I became pregnant I didn't appreciate the types of physical burdens that being pregnant caused, right? So, in the first trimester, for most people, you're dealing with almost crippling nausea. So, to force someone to be in essentially a state of illness and disability for an extra two weeks, four weeks, whatever, like, that is not nothing, right? So, a lot of times when we think about pushing it off, we talk about costs, we talk about how some people are timed out of care or have to get surgical care, but it's also just, like, the physical demands that you're forcing people to undergo that go, that can be quite significant. And when you talk about someone's end of first trimester, early second trimester, they might be starting to show and causing them to deal with the deeply uncomfortable position of being pregnant against their will in a body that they don't want. That is really hard stuff—that embodied pain—that I don't think we talk about enough, too.

Jennie: Absolutely. Yeah. The mental cost of having to be pregnant longer than you want to be. Okay, so the Supreme Court case, Comstock, like, it seems like it's gonna be a zombie law that keeps coming back. What needs to be done to fix this?

Greer: So, the most important thing that I think people need to keep in mind is that Comstock is a federal law, which means it's enforced by federal prosecutors. The person who runs or who chooses the head of our justice department is the president. So, making sure that you vote for a president who will not enforce Comstock is super important and is probably the most important thing that we can do to ensure that Comstock won't be brought back to life in the next four years. So, that's first. Second, obviously Comstock has to be repealed, like it has to be repealed, like, the sooner the better, priority one, it's urgent. And there's a lot of back and forth about what's the proper timing to try to repeal this law. There's some folks in the movement who really think the best thing to do is to wait until after the Supreme Court comes down with this decision. But in my opinion, it's really important. Comstock unfortunately is not a word that most people know about yet. I mean, when I even talk to my friends about what I'm working on, they are shocked, you know, jaw-on-the-floor shocked that this is a possibility. And that to me, just shows what a horrible information gap there is. And so, one of the ways that we can force the conversation and force people to know more about this law is by introducing a repeal bill now. Even if it's unlikely to get passed, right? I mean, it's of course true that we don't have a filibuster proof majority in the Senate right now. So, it's unlikely a Comstock repeal bill will actually successfully move forward. But it'll certainly, if we could, if we could force a vote on it, it would be really helpful to try to figure out: what are the legislators who are voting to keep this law on the books? And how can we make sure the public knows their names and knows the kind of extremist views that they have so everybody is aware of that? And then third, I'll say just that the president also has the power of pardons. So, if a president who supports abortion rights is not the person who's elected in this cycle, then it's really important that the current president before he leaves office were to pardon everybody for any Comstock-related crimes that happened while he was in office, right? Because Comstock has a five-year statute of limitations which means theoretically that a future administration could come in and try to go after people for doing stuff that is completely legal today. So, really important to use the power of the pardon as well.

Jennie: Okay, that one I didn't know. Wow.

Greer: Yeah. Scary stuff.

Jennie: Scary stuff. Whew. Okay. That one, I didn't know that, that was new…I had something else, but my brain got so caught up on the, whoa, this is new! Oh, the importance of messaging and, like, getting Congresspeople talking about this now because they're not always the best messengers and sometimes work needs to be done to get them up-to-date. And so, it's so important that they're starting now to get moving, to be able to seize that opportunity, when there is an opportunity, to pass it. Because if we wait until then, like, then we're starting at ground zero and it sometimes takes a while y'all to get everybody to understand all the things.

Greer: Yeah. On Twitter the other day, someone said something like, Comstock is, like, the new SB8, right? A small number of people were screaming about SB8 before it went into effect in Texas and everyone was like, “oh, no, that's crazy. It's not actually gonna take effect. There's just no way, it's too crazy.” Like, no one was listening to them, right? And then of course, like, SB8 just screwed Texas up so hard nine months before, even before Dobbs, right? And so, you know, I thought that perspective was so true that like, Comstock is that same thing. It's like, no, listen to people when they say what they're going to do, right? These extremists, these legislators are not hiding it. They're filing it in briefs before the Supreme Court. They're putting it in their strategy plans for a new administration. They're saying what they're gonna do, we have to believe them, and we have to move forward as aggressively as possible to try to stop that from happening.

Jennie: Yeah. And speaking of strategy plans, y'all, I recorded an episode with Beirne Roose-Snyder at the Council for Global Equality, talking about Project 2025. So, go listen to that ‘cause again, it's bleak, it's scary, but it is really important that people are talking about that now.

Greer: Absolutely.

Jennie: Okay, so now that we're all scared about Comstock and all the things, what can people do? So, like, what can the audience do right now?

Greer: I would say two things. Like, the first is this obvious one that we're also sick of hearing, right? You have to vote. You might not be excited by the candidate choices we have. Like, I'm certainly not either on some days. It doesn't matter, like, the stakes of this election are enormous for abortion rights. They're enormous for a lot of things. But, you know, if you're a single-issue voter about abortion and repro issues, this is one that you cannot sit out. Vote, up and down the ticket for candidates that agree with your kind of human rights. The second is the messaging point, right? I think we all need to talk to our friends and to our families about Comstock. Like, people need to know about it. People are shocked to hear about it. And part of that messaging comes from us sharing news articles, talking to your family and your friends, letting them know the consequences. And I think that's a really important part of this, too.

Jennie: Greer, thank you so much for being here. It's always a pleasure to get to talk to you about all of the legal things that are just out of my grasp.

Greer: Happy to be here. Thanks so much for having me.

Jennie: Okay, y'all, I hope you enjoyed my conversation with Greer. I had a great time talking to her about today's case. And yeah, I will see y'all next week. [music outro] If you have any questions, comments, or topics you would like us to cover, always feel free to shoot me an email. You can reach me at jennie@reprosfightback.com or you can find us on social media. We're at @RePROsFightBack on Facebook and Twitter or @reprosfb on Instagram. If you love our podcast and wanna make sure more people find it, take the time to rate and review us on your favorite podcast platform. Or if you wanna make sure to support the podcast, you can also donate on our website at reprofightback.com. Thanks all!