Justice Thomas and Alito likely to rule against mifepristone mailing citing the Comstock Act

In a move that has caught the attention of abortion-rights advocates nationwide, The Hill reported that Supreme Court Justices Clarence Thomas and Samuel Alito are considering leveraging a centuries-old law to potentially restrict abortion access across the United States.

The ongoing legal battle over the Biden administration's expansion of access to the abortion medication mifepristone has unearthed the Comstock Act, a law from 1873, as a focal point, signaling a possible nationwide abortion clampdown spearheaded by these justices.

The Comstock Act established 151 years ago, was crafted to prohibit the mailing of "obscene, lewd, [or] lascivious" materials, which, at the time, included contraceptives, abortion-inducing drugs, and pornography. This piece of legislation has been invoked in recent oral arguments by Justices Thomas and Alito amidst discussions on the expanded access to mifepristone, a drug approved for both abortion and miscarriage management.

During these arguments, Justice Alito raised questions about why the Food and Drug Administration (FDA) had seemingly overlooked the Comstock Act in their decision-making process regarding mifepristone. This inquiry has sparked concerns among legal experts and advocates for reproductive rights regarding the possible implications for abortion access in the nation.

Concerns Over the Comstock Act's Application

The Comstock Act's relevance today is a subject of debate, given its narrow interpretation by Congress over the years. Some legal scholars consider it to be nearly obsolete. However, the Act was effectively dormant while Roe v. Wade was in place, as it hadn't been applied in close to a century.

The revival of interest in the Comstock Act comes as anti-abortion activists, along with former Trump administration officials, see it as a pathway to clamp down on mailing of Mifepristone. This strategic use of the Comstock Act aims to restrict the mailing of abortion drugs and related materials, potentially leading to nationwide impacts on abortion access.

Julia Kaye from the ACLU's Reproductive Freedom Project voiced significant concern regarding how seriously Justices Thomas and Alito are taking arguments in favor of enforcing the Comstock Act to restrict abortion. This stance by two justices who played roles in overturning Roe v. Wade magnifies the apprehension surrounding this legal debate.

The Legal Battle Over Mifepristone

The legality of distributing mifepristone by mail has been scrutinized in court, with opposing views on whether the Comstock Act applies. Lower courts, as well as a memo from the Justice Department in 2022, concluded that the Comstock Act does not obstruct the lawful distribution of abortion medication.

Representing the conservative group challenging the FDA's expansion of mifepristone access, Erin Hawley cited the Comstock Act as a foundational element of their argument. This perspective was echoed in decisions by U.S. District Judge Matthew Kacsmaryk and 5th Circuit Court of Appeals Judge James Ho, both of whom referenced the Comstock Act in their rulings related to the drug.

In defense of the mifepristone access expansion, Solicitor General Elizabeth Prelogar and Danco attorney Jessica Ellsworth contended that the Comstock Act does not hinder the case at hand. They argue that the FDA's decisions are within its purview, unaffected by the ancient statute.

A Nationwide Conversation on Reproductive Rights

Greer Donley's comments emphasize a strategic shift toward normalizing the use of the Comstock Act in discussions around abortion law, suggesting that opinions authored by Justices Thomas and Alito could influence public and legal discourse. Further, Rep. Cori Bush (D-Mo.) has called for the outright repeal of the Comstock Act following the justices' arguments, signaling a legislative pushback against the potential restriction of abortion rights.

Justice Alito highlighted the prominence of the Comstock Act within legal circles, suggesting its significant yet understated role in the ongoing debate. Meanwhile, Leah Litman sees the potential endorsement of the Comstock Act by Justices Thomas and Alito as encouraging those wishing to restrict abortion access through legal avenues, viewing it as legitimizing their position.

This resurgence of the Comstock Act as a tool in the fight against abortion access is deeply troubling for advocates like Julia Kaye, given its potential to significantly alter the landscape of reproductive rights in America. The unfolding legal discourse underscores a critical juncture in the nation's history, where the interpretation and application of long-standing laws could redefine access to abortion and reproductive healthcare for generations to come.

In conclusion, the potential enforcement of the Comstock Act by Justices Thomas and Alito explores new legal territories in the fight against abortion access, leveraging a 151-year-old law to challenge the Biden administration's efforts to expand mifepristone access. This legal battle raises significant concerns among advocates for reproductive rights, signaling a possible shift in how abortion laws are interpreted and enforced in the United States. As the nation watches closely, the outcome of this case could have profound implications on reproductive health and rights across the country.

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