Supreme Court Justice Samuel Alito apparently took a cue from extremist anti-abortion activists last month when he asked during oral arguments on the legal availability of abortion medication called mifepristone why the Food and Drug Administration hadn’t “at least considered the application of 18 U.S.C. 1461” when the agency approved it for public use.
Alito was stealthily referring to the Comstock Act, a 150-year-old zombie statute that’s also referenced by code name only in Project 2025, the Republican Party’s platform for a potential second Trump presidency.
The 1873 statute made it a federal crime to mail anything “obscene, lewd, lascivious, indecent, filthy or vile,” anything designed for “immoral use,” and specifically in one section, any items “adapted or intended for producing abortion.” It’s worth bearing in mind that the general anti-vice provision, not the anti-abortion one, comes first in the statute.
Although it might have been frowned upon, Biden administration solicitor general Elizabeth Prelogar should probably have responded by asking Alito why the justices hadn’t considered application of the Comstock Act in 1973, when the Court decided Roe v. Wade; or two years ago, when they revoked the right to abortion in Dobbs. Neither ruling mentions Comstock, not even by its numerical designation.
One answer is that no one involved in those cases imagined that the Comstock Act applies or should apply in the way ultraconservatives like Alito and Clarence Thomas are now suggesting—as a de facto national ban on abortion.
Alito and Thomas, and their conservative allies, claim that the Comstock Act’s abortion provision would ban mailing of medication or instruments designed for abortion under any circumstances. But that is only true if the Supreme Court changes current law.
Since the 1930s, Congress, the courts, and even the Postal Service have all settled on an interpretation holding that the law only applies if a sender intended for the receiver to use the medication or tools “unlawfully,” largely because Americans have consistently rejected the notion of all-encompassing morality laws. The Comstock abortion provisions were dormant by the 1960s, and were presumed unconstitutional by the time the Supreme Court recognized a constitutional right to abortion in 1973.
Even if we take the so-called originalist approach, applying the words of the statute as written and paying special attention to the intent of its drafters, the Comstock Act has virtually nothing to do with the “rights of the unborn,” and was never intended as an unconditional ban on terminating pregnancies.