A 19th Century 'Chastity' Law Is Cited In Today's SCOTUS Abortion Pill Hearing
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This morning, the Supreme Court heard oral arguments in FDA v. Alliance for Hippocratic Medicine.
This case centers around allegations that the Food and Drug Administration overlooked potential safety issues when it made mifepristone, a drug commonly used during medication abortion, more easily accessible in 2016 and again in 2021. Mifepristone is one of two drugs that work together to terminate a pregnancy and is approved by the FDA through 10 weeks’ gestation.
The case cites something called the Comstock Act, a 19th century “anti-vice” law. This 1873 law is now at the center of a court ruling that threatens access to the leading abortion drug in the United States. The Comstock Act prevents the mailing of medications that can be used to terminate a pregnancy (among other things). Even though the act is old and not enforced in a time when mifepristone can be sent via mail, it’s now being brought up again.
But what is the Comstock Act and where does it stand today? Women's Health asked a legal expert what you need to know—and how the case may affect access to the abortion pill.
Meet the Expert: Mary Ziegler is a professor of law at the University of California at Davis and author of Abortion and the Law in America: Roe v. Wade to the Present.
What is the purpose of the Comstock Act?
The Comstock act was named after Anthony Comstock, an anti-vice crusader who became the U.S. postal inspector when Ulysses S. Grant was president, according to Britannica. The act centers around things that are mailed and prevented contraceptives, “lewd” materials, and drugs that could be used to terminate a pregnancy from being shipped in the mail.
“The Comstock Act was an obscenity law passed in 1873 designed to criminalize the mailing or receiving of items Congress believed would lead people to have illicit sex, including items for procuring or producing abortion,” explains Mary Ziegler, a professor of law at the University of California at Davis and author of Abortion and the Law in America: Roe v. Wade to the Present.
Who passed the Comstock Act?
The Comstock Act was passed by Congress in 1873, under the name An Act for the Suppression of Trade In, and Circulation of, Obscene Literature and Articles of Immoral Use, according to the New York Historical Society.
What was the impact of the Comstock Act?
“The Act, which has been in effect ever since, had a tremendous chilling effect,” Ziegler says. “There were lots of fines, much selective enforcement—especially of politically critics—but many more Americans had their behavior affected by the possibility of prosecution.”
Under the Comstock Act, people who were convicted of violating the act could receive up to five years in jail with hard labor and a fine of up to $2,000, Brittanica says.
Supporters of the act claimed that access to information and tools connected to birth control encouraged young people to have sex before marriage, per the New York Historical Society. But people who opposed the law said that people were still having sex and that restricted birth control access harmed women. The law also kept women from learning about options for preventing unintended pregnancies, New York Historical Society says.
There was fallout from the law: Medical professionals and social reformers who gave women information about pregnancy and contraception were arrested, New York Historical Society says.
What overturned the Comstock Act?
“The Comstock Act has never actually been overturned,” Ziegler says. “In 1971, Congress got rid of the explicit provisions on birth control, and since the 1930s, the lower courts have interpreted the statute not to cover all abortion-related mailings.”
But a few things impacted the Comstock Act over time. The act’s restrictions on birth control in the Comstock laws were considered void by Supreme Court decisions Griswold v. Connecticut in 1965 and Eisenstadt v. Baird in 1972.
Congress later repealed the birth control provision, but let the rest of the law stand, The New York Times says.
After Roe v. Wade, the landmark Supreme Court ruling that guaranteed the right to abortion in the U.S., laws that criminalized transporting information about abortion were still technically there, but they weren’t enforced, Brittanica says.
What does the Comstock Act have to do with abortion pills?
This morning, the Supreme Court is heard arguments in FDA v. Alliance for Hippocratic Medicine. That case centers around mifepristone, which is approved by the FDA to be used in medication abortion and is currently allowed to be shipped through mail-order pharmacies.
The court case is challenging a change made by the FDA in 2021 that allowed mifepristone to be sent through the mail vs. people having to visit clinics or healthcare providers to get the medication.
“Language in [the Comstock Act] refers to items ‘designed, adapted, or intended’ for abortion,” Ziegler says. “For this reason, conservatives argue that the statute makes it a federal crime to mail or receive any abortion-related item—even those for surgical abortions.”
What happened during this morning's SCOTUS oral arguments?
A majority of justices questioned whether the doctors challenging the government’s loosening of regulations have sufficient legal grounds to bring the lawsuit, per The Washington Post.
During oral argument, the government and the drug company that makes mifepristone emphasized the safety of the drug.
Ziegler told the Washington Post that she expects the Supreme Court and preserve access to mifepristone.
“Pretty clearly it seems a majority don’t think these people have standing,” she told the Washington Post. Translation: Justices may find that there isn't enough sufficient legal grounds to bring a lawsuit to the Supreme Court.
The case is ongoing.
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