The chaos unleashed by the U.S. Supreme Court’s reversal of Roe v. Wade was underscored on Friday when federal judges released dueling opinions on mifepristone, a pill used in more than half of abortions in the United States. In a suit by 17 progressive states and the District of Columbia, Judge Thomas O. Rice of the Eastern District of Washington State ordered the FDA to preserve access to mifepristone. In a competing ruling from Texas, Judge Matthew J. Kacsmaryk held that the FDA lacked the authority to have approved mifepristone in the first place, more than 20 years ago. Kacsmaryk’s ruling, which will go into effect after seven days pending an appeal, marks the first time that a court has suspended approval of an FDA-approved medication that has been on the market for decades.
As the next chapter of the abortion wars has begun, attention has centered on abortion pills. Simply because they’re used in a majority of abortion procedures, they have become a new fixation for the anti-abortion movement—which has championed drug-trafficking laws, pill-specific bans, and lawsuits in an attempt to block the use of this medication. The clashing federal-court decisions have teed up another ruling from the Supreme Court’s conservative supermajority—likely sooner rather than later.
Kacsmaryk’s unprecedented ruling, however, is not just a bid to block access to abortion pills. It is an open invitation to anti-abortion groups to use the Comstock Act—a law passed 150 years ago and rarely enforced in the past century—to seek a nationwide federal ban on all abortions.
A closer look at the Texas judge’s decision suggests that the anti-abortion movement’s attack on abortion pills is merely a staging post in that strategic effort. Although the ruling raises complex questions about a court’s authority to withdraw approval of a drug and the FDA’s options in responding, and could also have effects on states that protect abortion, these were not its most important implication.
[Patrick T. Brown: I’m pro-life. I worry that the abortion-pill ruling could backfire.]
That came in an argument supplied by the Alliance Defending Freedom, the conservative Christian group that led the litigation in the Texas case, in its effort to undermine access to mifepristone. Taking his cue from that argument, Kacsmaryk spotlighted the federal Comstock Act of 1873, an anti-vice law that prohibited mailing “every article or thing designed, adapted, or intended for producing abortion,” as well as anything “advertised or described in a manner calculated to lead another to use or apply it for producing abortion.”
The FDA has followed a consensus interpretation of the Comstock Act that has not faced serious challenge since the 1920s, which allows the mailing of abortion drugs when the seller does not intend them to be used unlawfully. Kacsmaryk dismissed this argument, concluding instead that the “plain text of the Comstock Act” controlled the result of the case—and mifepristone, he reasoned, was clearly an abortion drug that could not be mailed.
No abortion method exists in the United States that does not use something “designed, adapted, or intended for abortion” and sent through the mail or via another carrier. Abortion clinics do not make their own drugs or devices; they order these items from pharmaceutical-distribution companies and medical-equipment suppliers. Taken to its logical conclusion, Kacsmaryk’s ruling means that all abortions already violate criminal law.
The potential of the Comstock Act has not been lost on anti-abortion groups, which have been deploying it as a weapon in several important political battles. Although the Alliance Defending Freedom may have focused on mifepristone approval in the Texas case, conservative attorneys general in other states have pointed to the Comstock Act in order to threaten Walgreens and various pharmacies that were planning to seek certification to distribute mifepristone. The activists and lawyers behind Texas’s Senate Bill 8, the bounty bill allowing anyone to sue abortion providers and others who help those seeking an abortion, are seeding local ordinances in blue states with references to the Comstock Act in hopes of setting up a clash of local, state, and federal laws that will give the conservative Supreme Court a reason to intervene.
Kacsmaryk’s ruling on Friday clarifies why the Comstock Act is the next step for the anti-abortion movement. In one revealing passage, he nodded to the idea that the fetus is a person with constitutional rights. This fight for fetal personhood has been the defining goal of the movement since the 1960s, so it is no surprise that a judge as seemingly aligned with the movement’s aims as Kacsmaryk would implicitly embrace it. In theory, as the Supreme Court itself reasoned in Roe v. Wade, if a fetus were a rights-holding person under the Fourteenth Amendment, liberal abortion laws would violate the Constitution.
The reality is more complex. Although abortion opponents hope to rely on the Fourteenth Amendment, it can be enforced only against the government and its agents, whereas most abortions are performed by private doctors, not state employees. In the past, anti-abortion lawyers have tried to overcome this problem by contending that if a fetus were a person, it would be unconstitutional for a state to prosecute people for infanticide but not for abortion. If this theory is held to be correct, seeing how states would not have an obligation to punish a pregnant person for having an abortion is difficult.
[Read: What winning did to the anti-abortion movement]
In the short term, at least, such arguments about personhood are not going anywhere. The Supreme Court recently turned down a possible case on the subject from Rhode Island. Brett Kavanaugh, who holds one of the Court’s key votes on these issues, has stressed that the Constitution “is neither pro-life nor pro-choice.”
The prospect of a total abortion ban getting through Congress seems similarly unlikely. In every major election since the reversal of Roe, Republicans have appeared to have paid a price for their position on abortion. The GOP has hardly abandoned that position: Despite disappointing results in the 2022 midterms, the Republican National Committee earlier this year urged the party to go on offense and embrace sweeping bans. Yet even in the House of Representatives, where the GOP holds a majority, Republicans have not called for a federal ban on abortion.
For abortion opponents, the Comstock Act is the only realistic way to force through a national ban. That’s because it has nothing to do with what the American people want or what the Constitution means. When it comes to Comstock, the recipe for success requires simply the support of conservative judges who are indifferent to precedent and the constitutional concerns raised by reviving a law long regarded as a dead letter. Anti-abortion activists have made the same bet that Judge Kacsmaryk has: They have not captured the hearts or minds of the American people, but they may have captured the courts.