This Zombie Law Could Threaten Abortion Access Nationwide

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In 1873, the United States passed a sweeping anti-obscenity law named for the vice squad crusader put in charge of its enforcement. Anthony Comstock is said to have bragged that in his role as U.S. postal inspector he seized 150 tons of books, made 4,000 arrests — including of feminists Emma Goldman and Margaret Sanger — and drove at least 15 people to suicide. 

The Comstock Act 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.” A century and a half later, this long-dormant federal law is back with a vengeance. Opponents have referred to Comstock as a “zombie law” for the fact that, after decades of languishing unenforced, it has been revived thanks to the efforts of a small group of anti-abortion ideologues who have invoked it in the most high-profile legal clashes concerning abortion this last year. 

With the abortion protections of Roe eliminated, an anti-abortion president could use Comstock to end virtually all professional abortion procedures in the country, advocates say. That’s because the decision about whether to police the mail using Comstock rests with the president. Earlier this year, President Biden’s Department of Justice issued guidance asserting that, in its view, the law “does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”

The next president will have to make a similar judgment about whether the law applies not just to mifepristone and misoprostol, two medications used in early-term abortions, but to the mailing of any other supplies used by facilities that provide abortion. And because it is already on the books, that president wouldn’t necessarily have to broadcast his or her plans to use the law ahead of time, and risk engaging in the kind of fight that is a political disaster.

Questioned during a recent interview about whether she would support a federal ban on abortion, Nikki Haley, the self-described “unapologetically pro-life” former governor of South Carolina, said it was “not realistic” to think a president could institute a national prohibition. When it comes to abortion, Haley replied matter-of-factly, the president’s hands are tied by Congress. “Nothing’s gonna happen if we don’t get 60 votes in the Senate,” Haley said. “We’re not even close to that on the Republican or the Democrat side.”

That’s a convenient answer for a presidential candidate wary of alienating the growing supermajority of American voters who believe abortion should be legal in all or most circumstances. And if she’d said it at any point in the last 50 years, Haley probably would have been right, says Mary Zeigler, a law professor and an expert on the history of abortion in American politics. 

Ordinarily, Zeigler says, ”If you’re the president, what you think about abortion usually isn’t super important, other than who you nominate for the courts.” Ronald Reagan may have lamented the fact that Americans didn’t give greater thought to the rights of “the unborn child,” but there wasn’t much he could do about it legally. But for the first time in a generation, the next president’s views on abortion will matter very much for women across the United States, thanks to the renewed right-wing fixation with the Comstock Act.

Over the last several months, Comstock has been cited with increased frequency by anti-abortion lawyers and judges. In November, lawyers from the right-wing litigation shop Alliance Defending Freedom cited Comstock in their lawsuit seeking to force the FDA to withdraw its approval of mifepristone. In February, Republican attorneys general invoked Comstock in a letter warning the pharmacies Walgreens and CVS against dispensing mifepristone at its pharmacies. And in April, the lawyer Jonathan Mitchell filed a lawsuit citing Comstock on behalf of the city of Eunice, New Mexico, which is seeking to ban abortion within its boundaries. 

“They’re trying to take us back to the 1800s, and take a position that, essentially, would shut down abortion care in the country,” Lorie Chaiten, a senior staff attorney at the ACLU, told Rolling Stone when discussing the FDA case earlier this year. Her concern was well-founded. In a 67-page opinion that would have effectively ended nationwide distribution of mifepristone, Trump-appointed Judge Matthew Kacsmaryk sided with lawyers who argued that the Comstock Act makes abortion pills “nonmailable.” The Fifth Circuit Court affirmed his interpretation, writing that the law may be violated by “merely by knowingly making use of the mail for a prohibited abortion item.” (The Supreme Court stayed the lower court decision.)

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“What anti-abortion folks are saying is [Comstock] bars the mailing of anything intended or adapted for abortion … Every abortion involves something that came in the mail,” Zeigler says. The only abortions that could continue if the law were enforced are D.I.Y. procedures, using improvised methods and devices. “If a Republican is elected or not, period, but also which Republican is elected or not could really change the [anti-abortion] movement’s fortunes because there is the Comstock Act that is available for a president to try to use.”

The Haley campaign did not respond to an inquiry from Rolling Stone about how she would instruct her own Justice Department to interpret the existing law. Nor did the campaigns for Donald Trump, Mike Pence, Ron DeSantis, Tim Scott, Francis Suarez, Asa Hutchinson, Chris Christie, Larry Elder and Vivek Ramaswamy. Only one declared candidate — the pastor and Dallas-based businessman Ryan Binkley — replied to Rolling Stone’s inquiry. Binkley, said in a statement that he is “pro-life,” and if elected, he would “ensure the Department of Justice respects the sovereignty of our states and follows the law judiciously.”

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