A law passed 150 years ago that banned the mailing of contraceptives, lewd materials and drugs that induce abortions could provide a pathway for effectively banning abortion nationwide – even in states where the procedure is legal.
When the Supreme Court last summer reversed Roe v. Wade and eliminated constitutional protections that guaranteed abortion rights nationwide, the conservative majority fashioned its ruling as returning the matter of abortion policy-making to elected officials, particularly in state legislatures.
But the battle lines now being drawn around the Reconstruction-era federal law – the Comstock Act – are an example of how the picture after Roe v. Wade is far more complicated as abortion opponents are challenging the means of abortion, such as the drug mifepristone, in court.
The most sweeping Comstock Act arguments from anti-abortion activists could at the very least end the availability of medication abortion, which make up the majority of abortions in the US today, and could have the effect of eliminating surgical abortions as well by restricting the shipment of medical instruments and supplies used in the procedure.
“Comstock is really the backdoor way to remove access to abortion across the whole country,” said Greer Donley, a University of Pittsburgh Law School professor who specializes in abortion law.
A fight over the reach of the law and how it can be deployed is beginning to brew in court. It has also been on the radar of state and local officials. But the the end goal is a GOP-led federal government willing and empowered to wield the law in a way that could make it impossible for abortion providers to operate.
If the current proxy legal battles over the statute’s meaning unfold in the way abortion opponents hope, enforcement of the law could be a central issue in the 2024 White House race and…
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