Battle Over Medication Abortion Threatens to Revert US Back to 19th Century

On May 1, the New Orleans-based 5th U.S. Circuit Court of Appeals blocked the mailing of mifepristone, a common abortion medication. The ruling restricted distribution and use of the medication to in-person clinic visits only, even as the number of brick-and-mortar abortion clinics has continued to shutter over the past year, and some red states blocked access to mail order pills.

The Food and Drug Administration (FDA) deemed mifepristone a safe medication over 25 years ago in 2000, and over half of all abortions performed in the United States are facilitated using pills that can be prescribed via telemedicine appointments, especially as abortion bans fan out in deeply red parts of the country. This rose 10 percent in the three years following the overturning of Roe v. Wade.

Immediately after the ruling, two manufacturers responsible for mifepristone production — Danco Laboratories and GenBioPro — filed emergency appeals to counter the ban, and on May 14 the U.S. Supreme Court paused the 5th Circuit’s decision, allowing the distribution of abortion medication by mail to continue. This is a temporary action, however, as litigation continues to unfold.

The initial decision came from the state of Louisiana, which sued the FDA to block the mailing of mifepristone. Anti-abortion activists argued that the distribution of abortion pills and information via the mail and telemedicine circumvents the purpose of state-specific abortion bans. But such restrictions also hinder access for disabled people, people without health care, and others who do not have access to in-person abortion care in states without abortion bans. Once again, restrictions to abortion go hand in hand with classism, ableism, and racism to restrict access to abortion care to those who have the money and means to afford in-person health care.

And for historians, the 5th Circuit ruling echoes the Comstock Act of 1873, which prohibited the distribution of not only abortion medication and information but also “obscene” materials in the mail.

Are Anti-Abortion Advocates Trying to Revive the Comstock Act?

The Comstock Act was named after the eponymous religious activist Anthony Comstock, who founded the New York Society for the Suppression of Vice. After extensive lobbying from Comstock and other social purists — or people who sought to promote Christian morality through legislation — Congress signed the Comstock Act into law on March 3, 1873. The act restricted the distribution of contraceptives and abortion-related items, classifying them as “obscene.”

A number of other things could be classified as obscene because the “Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” never defined what “obscene” materials were, putting it up to what law enforcement officials deemed “obscene” according to the Hicklin Test. This test, established by the English court case R v. Hicklin (1868), was also deeply subjective based on “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” The Hicklin test was struck down by the Supreme Court in the 1957 decision Butler v. Michigan.

Because of this subjectivity, a number of non-pornographic materials were seized alongside mailed contraception, birth control devices, and sexual health materials, including classical literature like Walt Whitman’s Leaves of Grass and art like Alexandre Cabanel’s “The Birth of Venus.” Erotica was also seized, along with any materials depicting same-sex relationships.

And just like what organizers and legal scholars anticipate will happen following the 5th Circuit’s ruling, the Comstock Act disproportionately impacted poor, working-class women. Restricting access to contraceptives and abortion materials via mail cut off the most affordable options and often the only options to people who could get pregnant. Wealthy women were still able to access abortion care through private, in-person health care, but poor women who did not have reliable access to safe health care had to fall back on unsafe abortions once again.

Today, anti-abortion activists are debating the resurrection of the Comstock Act of 1873, which is still in effect but has largely become dormant in the last 150 years. The law is still technically enforceable and could be used to stop the distribution of contraceptives, abortion medications, and supplies through the mail and local carriers, which Justice Clarence Thomas argued in his dissenting opinion to the Supreme Court’s ruling upholding mail access to mifepristone on May 14.

As Thomas wrote in his dissenting opinion, “It is a criminal offense to ship mifepristone for use in abortions. The Comstock Act bans using ‘the mails’ to ship any ‘drug … for producing abortion.’” Thomas argues that Louisiana’s case that mifepristone is being shipped to a state that has banned abortion “violates the Comstock Act.”

While Donald Trump initially pushed for the legality of abortion to be a states’ rights issue, the possibility of a nationwide abortion ban is still very much on the table.

The Fifth Circuit Court’s decision reinforces this act, overruling Food and Drug Administration approval after detailed testing and review. The decision echoes a growing number of high court opinions that threaten established protections for marginalized communities, from the overturn of Roe v. Wade in 2022 to ongoing threats to Obergefell v. Hodges, the Supreme Court case that enshrined federal protections for and recognition of same-sex marriage. As opposed to Comstock’s method of exerting conservative Christian moral control with legislation, far right Christian “purists” like him are turning to the Supreme Court to wage their battles.

Knowing this historical connection can help us understand how to fight this latest attack. This Fifth Circuit Court decision itself builds on the 2022 Dobbs. V. Jackson Women’s Health Organization ruling that overturned Roe v. Wade. It makes historical sense, as Roe v. Wade was one of several judicial cases that weakened the Comstock Act. Thankfully, Congress officially repealed the provisions of the act that prohibited the mailing of contraceptives in 1971, but time will tell if this protection and protection from other court decisions will hold.