WHAT'S REALLY GOING ON HERE?
A GOP/CHRISTIAN NATIONALIST PLAN TO LIMIT WOMEN'S REPRODUCTIVE CHOICE WINS A BIG COURT CASE THANKS TO AN 1873 LAW. CONGRESS MUST FIX THAT LAW BEFORE THE SUPREME COURT CAN USE IT TO BAN ALL ABORTIONS.
A “rogue” Texas federal jurist has performed CPR on the previously left-for-dead 1873 Comstock Act to provide a Congressional legislative cover for his decision to suspend access to mifepristone, a core abortion pill, despite that medication’s long-standing FDA certification. That Act was central to a late nineteenth century movement to impose white Christian religious values to ban the use of the mail and similar services to distribute pornography and a broad swath of other materials considered to be of an immoral sexual nature, including anything related to bringing about an abortion.
Apart from the formidable New York Times OpEd columnist Michelle Goldberg, however, you would not know much at all about the key importance of the Comstock Act to Judge Kacsmaryk’s preliminary injunction suspending the FDA’s approval of mifepristone for general use. This state of ignorance persists regardless of the fact that the Judge gave it primacy of place in his opinion and expressly asserted its crucial role in justifying his unprecedented ban on a medication that has been FDA-approved as safe and effective for over two decades, and most recently certified for use at home without the presence of a medical professional.
Ms. Goldberg has given contemporary journalists a quick and somewhat “dirty” history lesson, and a highly-relevant lens through which to see “what’s really going on here,” and why the Comstock Act poses such an existential threat to women’s already diminished rights to control their own bodies, far beyond one judge’s opinion and one banned medication.
“Anthony Comstock, the mutton-chopped anti-vice crusader for whom the Comstock Act is named, is back from the dead. Comstock died in 1915, and the Comstock Act, the notorious anti-obscenity law used to indict the Planned Parenthood founder Margaret Sanger, ban books by D.H. Lawrence and arrest people by the thousands, turned 150 last month. Had this anniversary fallen five or 10 years ago, it barely would have been worth noting, except perhaps to marvel at how far we’d come from an era when a fanatical censor like Comstock wielded national political power. ‘The Comstock Act represented, in its day, the pinnacle of Victorian prudery, the high-water mark of a strict and rigid formal code,’ wrote the law professors Joanna Grossman and Lawrence Friedman. Until very recently, it seemed a relic.
“Yet suddenly, the prurient sanctimony that George Bernard Shaw called ‘Comstockery’ is running rampant inAmerica. As if inspired by Comstock’s horror of ‘literary poison’ and ‘evil reading,’ states are outdoing one another in draconian censorship. In March, Oklahoma’s Senate passed a bill that, among other things, bans from public libraries all content with a ‘predominant tendency to appeal to a prurient interest in sex.’ Amy Werbel, the author of ‘Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock,’ described how Comstock tried to suppress photographs of cross-dressing women. More than a century later, Tennessee has banned drag performances on public property, with more states likely to follow.
“And now, thanks to a rogue judge in Texas, the Comstock Act itself could be partly reimposed on America. Though the act had been dormant for decades and Congress did away with its prohibitions on birth control in 1971, it was never fully repealed. And with Roe v. Wade gone, the Christian right has sought to make use of it. The Comstock Act was central to the case brought by a coalition of anti-abortion groups in Texas seeking to have Food and Drug Administration approval of mifepristone, part of the regimen used in medication abortion, invalidated. And it is central to the anti-abortion screed of an opinion by Matthew J. Kacsmaryk, the judge, appointed by Donald Trump, who on Friday ruled in their favor.” (Emphasis added.)
https://www.nytimes.com/2023/04/08/opinion/comstock-laws-abortion-texas.html
As we shall see, Congress must hurry to amend or repeal the long-outdated and dangerous Comstock Act as soon as possible, before a Supreme Court majority reviewing the Texas case can decisively certify its resuscitation—and effectively ban all abortions nationwide regardless of the FDA’s or any state’s authority, simply by applying the sweeping language of Comstock to hold that using the U.S. mail or another common carrier to distribute any material “thing” used in either medical or surgical abortion is indeed a federal crime.
Even if most national media reporters, editors, and talking heads continue to not give much notice to Judge Kacsmaryk’s re-animation of the Comstock Act, you can be sure that conservative Justices on the Supreme Court will be paying attention, in some cases with relish! Most media attention has understandably been focused on the second part of the Judge’s holding, where he blatantly second-guessed the FDA’s process and scientific judgment in determining safety and efficacy based on his unqualified (in both senses of the word) endorsement of the purported “scientific” evidence presented by the plaintiffs in the Texas case. No FDA-approved drugs would be safe from rogue judges exercising their own non-scientific opinion to do away with, for example: the Covid vaccine; measles immunizations; in vitro fertilization; Alzheimer’s medication; or the other abortion pill (misoprostal) currently in use in the U.S. in combination with mifepristone, which is widely and safely used in Europe on its own for that purpose.
Judge Kacsmaryk has a well-documented personal opposition to abortion in all its forms. He went out of his way to express his holding in the Texas case in the preferred terminology of the anti-abortion movement, which he knows well from serving as a movement legal counsel—casting aspersions on “chemical” medications; using the pejorative “abortionists;” disowning the term “fetus” in favor of “the unborn child.” No search for neutral judicial language here. https://www.washingtonpost.com/opinions/2023/04/08/abortion-pill-worst-judge-kacsmaryk/
Women’s reproductive rights have already been worn down by the Dobbs decision and subsequent state legislative actions or reinstatements of pre-Roe abortion bans. Judge Kacsmaryk’s opinion’s view that the Comstock Act remains in full effect as good law and commands the outcome of the Texas case, however, creates a new and mortal threat. A Supreme Court majority reviewing the Texas case could reasonably conclude that Judge Kacsmaryk was judicially over his skis in his sweeping conclusion countermanding a whole series of FDA decisions well within that federal agency’s legal discretion in terms of the safety and efficacy of mifepristone.
The same or even a different Court majority in this case, however, could on the other hand concur with Judge Kacsmaryk’s holding that the Comstock Act denies the FDA any ability to allow mifepristone to be distributed, precisely because such distribution would now be a criminal offense under the Comstock Act because the Court’s the Dobbs holding removed any Constitutional barrier (under the Roe-Casey line of cases) to full enforcement of the Comstock Act’s clearly-expressed anti-abortion prescriptions!
A literal or originalist reading of Comstock, moreover, could also criminalize the transport of any other type of medicine, material, or equipment that is created for the purpose of carrying out either medicinal or surgical abortions anywhere in the United States regardless of any state law allowing such procedures. Thus would end access to abortion as we know it in all states, without exceptions for rape, incest, or preserving a woman’s life or health. Only Congress can change this outcome.
The following paragraphs provide an extensive sequential quotation of the most relevant parts of Judge Kacsmaryk’s opinion regarding the Comstock Act’s crucial importance to his holding—with brief annotations in brackets and italics, and minus some of the lengthier citations, which are of course all legally relevant but interfere with the flow of his analysis. The judge has quite obviously framed his analysis to attract the support of the anti-abortion Supreme Court Justices who are either “literalists” or “originalists.”
“Under the APA [The federal Administrative Procedures Act], courts must ‘hold unlawful and set aside agency action, findings, and conclusions found to be…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ or ‘in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.’…The Court will first address FDA’s 2021 Actions that eliminated the in-person dispensing requirement and announced that FDA would allow abortionists to dispense chemical abortion drugs by mail or mail-order pharmacy.
“Plaintiffs have a substantial likelihood of success on their claims that these actions violate federal law….The Comstock Act declares ‘[e]very obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance’ to be ‘nonmailable matter’ that ‘shall not be conveyed in the mails or delivered from any post office or by any letter carrier.’ 18 U.S.C. § 1461. The next clauses declare nonmailable ‘[e]very article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and [e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose.’ Id. Similarly, Section 1462 forbids the use of ‘any express company or other common carrier’ to transport chemical abortion drugs ‘in interstate or foreign commerce.’
“Defendants’ argument that the Comstock Act does not prohibit the mailing of chemical abortion drugs relies on the ‘reenactment canon.’ That is, courts may distill a statute’s meaning when ‘federal courts of appeals settled upon a consensus view’ and ‘Congress never modified the relevant statutory text to reject or displace this settled construction.’...This purported ‘consensus view’ is that the Comstock Act does not prohibit the mailing of items designed to produce abortions ‘where the sender does not intend them to be used unlawfully….This argument is unpersuasive for several reasons.
‘Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.’… But ‘[t]here is an obvious trump to the reenactment argument’: [‘w]here the law is plain, subsequent reenactment does not constitute an adoption of a previous administrative construction.’…Additionally, the presumption only applies when the judicial or administrative gloss ‘represented settled law when Congress reenacted the [language in question].’…
“Here, the plain text of the Comstock Act controls. See Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731, 1749 (2020) (‘[W]hen the meaning of the statute’s terms is plain, our job is at an end.’); Lawson v. FMR LLC, 571 U.S. 429, 441 (2014) (‘Absent any textual qualification, we presume the operative language means what it appears to mean.’).…[In Bostock, Justice Gorsuch–a “textualist”– wrote the 6-3 majority opinion holding that Title VII of the Civil Rights Act of 1964 prohibiting discrimination against employees “because of sex” also covered sexual orientation. One could suspect that Judge Kacsmaryk may not agree with the Bostock holding, but he may need Justice Gorsuch’s support to survive Supreme Court review in the mifepristone case.]
“The Comstock Act declares ‘nonmailable’ every ‘article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.’ 18 U.S.C. § 1461 (emphasis added). It is indisputable that chemical abortion drugs are both …’drug[s]’ and are ‘for producing abortion.’ Therefore, federal criminal law declares they are ‘nonmailable.’ See Texas v. Becerra, No. 5:22-CV-185-H, 2022 WL 3639525, at *26 n.21 (N.D. Tex. Aug. 23, 2022) (‘[F]ederal law bar[s] the importation or delivery of any device or medicine designed to produce an abortion.’)
“The statute plainly does not require intent on the part of the seller that the drugs be used ‘unlawfully.’ To be sure, the statute does contain a catch-all provision that prohibits the mailing of such things ‘for producing abortion, or for any indecent or immoral purpose.’ 18 U.S.C. § 1461 (emphasis added). But ‘or’ is ‘almost always disjunctive.’ Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018) (internal marks omitted). Additionally, the ‘or’ in Section 1461 is preceded by a comma, further disjoining the list of nonmailable matter. Thus, the Court does not read the ‘or’ as an ‘and.’ Similarly, the Act requires that the defendant ‘knowingly uses the mails for the mailing’ of anything declared by the Act ‘to be nonmailable.’ 18 U.S.C. § 1461. A defendant could satisfy this mens rea requirement by mailing mifepristone and knowing it is for producing abortion. The statute does not require anything more.…
“Even if the statute were ambiguous, the legislative history also supports this interpretation….See H.R. Rep. No. 91-1105, at 2 (1970) (‘Existing statutes completely prohibit the importation, interstate transportation, and mailing of contraceptive materials, or the mailing of advertisement or information concerning how or where such contraceptives may be obtained or how conception may be prevented.’). Congress unsuccessfully tried to modify Section 1461….In fact, the House Subcommittee Report on the proposed amendment acknowledged the plain meaning of the statute: ‘[U]nder current law, the offender commits an offense whenever he ‘knowingly’ mails any of the designated abortion materials,’ and the proposed amendment would ‘require proof that the offender specifically intended that the mailed materials be used to produce an illegal abortion.’…
“Defendants rely heavily on the OLC [U.S Justice Department Office of Legal Counsel] memo….But none of the cases cited in the OLC Memo support the view that the Comstock Act bars the mailing of abortion drugs only when the sender has the specific intent that the drugs be used unlawfully. On the contrary, the Seventh Circuit reasoned that the word ‘abortion’ in the context of the Act indicates ‘a national policy of discountenancing abortion as inimical to the national life.’ Bours, 229 F. at 964. Bours further declared ‘it is immaterial what the local statutory definition of abortion is, what acts of abortion are included, or what excluded.’ Id. Similarly, the Sixth Circuit’s decision in Davis v. United States only suggests that legitimate uses of drugs should not fall within the scope of the statute ‘merely because they are capable of illegal uses.’62 F.2d 473, 474 (6th Cir. 1933). In other words, the Davis holding reflects the position that legitimate uses—uses beyond the purposes the statute condemns—should be excluded from the scope of the statute, not that whatever uses are lawful under state law should be.
“Likewise, the Second Circuit interpreted the statute to embrace articles the 1873 Congress ‘would have denounced as immoral if it had understood all the conditions under which they were to be used.’ United States v. One Package, 86 F.2d 737, 739 (2d Cir. 1936). The court further observed that ‘[t]he word ‘unlawful’ would make this clear as to articles for producing abortion.’ Id.; see also James S. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 37 of 67 PageID 4459 38,17 ST. MARY’S L.J. 29, 33 (1985) (explaining that thirty of thirty-seven states had statutory abortion prohibitions in 1868—just five years before Congress enacted the Comstock Act).
[Here the Judge appears to align himself not only with a Christian Right law journal’s point of view, but more importantly with Justice Alito’s version of ‘originalist’ doctrine, as he expressed it in Dobbs, that no Constitutional right to abortion can be inferred from the Fourteenth Amendment of the Constitution—enacted in as it happens in 1868—because at the time of its enactment the preponderant state of American law and tradition was to prohibit abortion, not permit it. Many scholars would dispute Alito’s historical analysis, as they would now with respect to Judge Kacsmaryk’s apparent adoption of it, possibly to curry favor on appeal. The Judge’s overall analysis of relevant circuit court decisions from the 1930S is strongly and broadly disputed. As discussed by Ms. Goldberg in her OpEd cited above, “Many legal scholars see this invocation of the Comstock Act as legally dubious. As David S. Cohen, Greer Donley and Rachel Rebouché explain in the draft of a forthcoming article, circuit court cases in the 1930S found that the Comstock Act applies only to materials meant to be used unlawfully.”]
“Defendants maintain ‘the legality of the agency actions needs to be judged at the time of the decision, all of which occurred when Roe and Casey were still good law.…Even assuming that is true in all cases, Roe did not prohibit all restrictions on abortions. And it is not obvious that enforcement of the Comstock Act post-Casey would have necessarily run afoul of Casey’s ‘arbitrary ‘undue burden’ test.’ Dobbs, 142 S. Ct. at 2266…. In any case, the Comstock Act plainly forecloses mail-order abortion in the present, and Defendants have stated no present or future intention of complying with the law. Defendants cannot immunize the illegality of their actions by pointing to a small window in the past where those actions might have been legal.
“In sum, the reenactment canon is inapplicable here because the law is plain. Even if that were not true, the cases relied on in the OLC Memo do not support Defendants’ interpretation. And even if they did, a small handful of cases cannot constitute the ‘broad and unquestioned’ consensus required under the reenactment canon. Therefore, Plaintiffs have a substantial likelihood of prevailing on their claim that Defendants’ decision to allow the dispensing of chemical abortion drugs through mail violates unambiguous federal criminal law….”
Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, Case 2:22-cv-00223-Z, Filed 04/07/23, pp. 32-38; https://www.cnn.com/2023/04/07/politics/read-texas-abortion-pill-mifepristone-ruling/index.html
Clearly, the Comstock Act is Judge Kacsmaryk’s crucial linchpin for his nationally applicable holding effectively banning a key abortion pill from circulation and use. But by grounding his opinion on his literal reading of the Comstock Act, he has also provided a pathway that the Supreme Court could follow to impose far more of the anti-abortion movement’s agenda than merely prohibiting patients from getting mifepristone. Of course, in so doing, the ruling Justices would be effectively disowning (after merely a year) the majority assertion in Dobbs that issues like abortion are, under the U.S. Constitution, best left to the states rather than the Court itself to decide, and instead imposing a national anti-abortion policy based on the Justices’ interpretation of a long dormant federal criminal statute.
Michelle Goldberg alluded to the potential for such a broad anti-abortion outcome in her OpEd’s concluding quote from a forthcoming scholarly article.
“‘Absent the narrowing construction [previously] applied by the federal circuit courts, the [Comstock] law’s plain terms could effectively ban all abortion nationwide because almost every pill, instrument or other item used in an abortion clinic or by a virtual abortion provider moves through the mail or an express carrier at some point,’ wrote Cohen, Donley and Rebouché.”
https://www.nytimes.com/2023/04/08/opinion/comstock-laws-abortion-texas.html
See also the following link to an article by the legal scholar Mary Ziegler (hte Msrtion Luther King Professor of Law at the University of California Davis, also published this day. Professor Ziegler reaches the same conclusion as this newsletter regarding how the most-radical anti-abortion movement is pinnings its hopes for a national abortion ban on the Supreme Court choosing to enforce the Comstock Act.
https://www.theatlantic.com/newsletters/archive/2023/04/abortion-opponents-next-push/673687/
The only sure-fire solution to this further judicial assault by GOP forces and White Christian Nationalists on women’s reproductive rights, therefore, is for Congress to act as quickly as possible to make the Comstock Act irrelevant. Even in Dobbs, the Court did allow for the possibility that, in addition to the states, Congress could constitutionally legislate on the issue of abortion. To prevent a majority of the Supreme Court from grasping Judge’s Kacsmaryk’s low-hanging fruit–Comstock’s word salad of sex-and gender-based prohibitions–Congressional Democrats and Independents need 10 responsible Republican votes in the Senate and six in the House of Representatives. All GOP federal lawmakers should now be challenged to reveal on record their opinions on Judge Kacsmaryk’s holding and the relevance of the Comstock Act. Only then will we know if they are choosing to live in the 19th century rather than the 21st–and forcing the women of America to join them there.