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What is the 19th century Act being cited as a basis for blocking the abortion pill?

AYESHA RASCOE, HOST:

A federal case challenging access to a common abortion pill is reviving discussions about old anti-obscenity laws. A hundred and fifty years ago, what's known as the Comstock Act banned lots of things related to sex and reproductive health that are seen as quite routine today. Until recently, that law had been largely forgotten or ignored. But it's being cited again in the abortion pill case. NPR's Sarah McCammon joins us now. Good morning, Sarah.

SARAH MCCAMMON, BYLINE: Hey, Ayesha.

RASCOE: So what exactly is the Comstock Act? Because a lot of people will probably have no idea, like myself.

MCCAMMON: Fair enough. And it's not something people talked about a whole lot until more recently. But it is a federal law that dates back to 1873, and it prohibits using the mail to spread information or materials deemed obscene. Now, that term obscenity isn't defined, but the statute did explicitly include anything used to cause an abortion. And that's where it becomes relevant here.

The official title of the law is much longer, but it's known as the Comstock Act because of a Connecticut man named Anthony Comstock. And I talked to Lauren MacIvor Thompson - she's a historian at Kennesaw State University in Georgia. And here's how she described Comstock.

LAUREN MACIVOR THOMPSON: He was from a very religious family. And apparently while he was serving in the Army, he was really horrified by the amount of porn and alcohol he saw his fellow soldiers consuming.

MCCAMMON: So she says after the Civil War, Comstock wound up in New York and became an activist, leading efforts to oppose those types of behaviors. MacIvor Thompson told me that as part of that work, Comstock assembled a large collection of items he found objectionable, which he'd obtained in places like brothels and sex shops. And he took it all to Washington, D.C.

MACIVOR THOMPSON: He has a very extensive collection of porn, sex toys, quote-unquote, "obscene" books and, of course, contraceptive and abortifacient devices. And he invites the congressmen to come and look at this display of shocking items.

MCCAMMON: And Ayesha, that display must have worked because Comstock persuaded Congress to pass restrictions on a lot of things, including sending those materials through the mail. Then many states also passed their own versions of Comstock laws around this time.

RASCOE: So where do these laws stand now in 2023?

MCCAMMON: Right. So you should know, even in the 19th and early 20th centuries, when Comstock laws were being more heavily enforced, MacIvor Thompson told me that they were really largely unpopular, and there were efforts to repeal them. But the Comstock Act was not formally repealed by Congress. Instead, a long series of court cases eventually overturned much of it - maybe most famously a case that legalized contraception for married couples. That was Griswold v Connecticut. And the rest of Comstock has largely been ignored or seen as unenforceable because of evolving case law around issues like free speech and privacy rights. Last year, the Justice Department under President Biden issued a memo stating that Comstock does not apply to the mailing of abortion pills as long as the sender intends for them to be used legally. And the FDA under Biden has been allowing that since 2021, officially.

RASCOE: OK, so let's talk about the high-profile abortion pill case that the Supreme Court is now involved in. How does Comstock play into that case?

MCCAMMON: Well, as you know, anti-abortion groups are trying to overturn the Food and Drug Administration's approval of the abortion pill, mifepristone, and do away with those recent rule changes that have made the pills more available. And they're in part citing the Comstock Act to try to do that. Erin Hawley is an attorney for the plaintiffs.

ERIN HAWLEY: What the Comstock Law says is that it is improper to mail things that induce or cause abortions, which is precisely the action the FDA took in 2021 when it permitted the mailing of abortion drugs.

MCCAMMON: And the federal judge in Texas, where this case originated, Matthew Kacsmaryk, appeared to agree with that argument in his ruling just over a week ago. As this case has been working its way through the federal courts, Ayesha, the Fifth U.S. Circuit Court of Appeals also issued a decision that seemed friendly to anti-abortion groups' reading of Comstock.

RASCOE: You mentioned that the Comstock Act had been seen mostly as a thing of the past. What would it mean if anti-abortion groups do succeed in bringing it back?

MCCAMMON: Legal experts I've been talking to note that the language in Comstock is quite vague and arguably could include a lot of things. For example, Comstock was once used to ban many things we take for granted today, like the distribution of information about birth control. Mary Ziegler is a law professor at the University of California, Davis.

MARY ZIEGLER: I cannot underscore how broad the text is. It could encompass any device used in an abortion.

MCCAMMON: And Ziegler says that reading of Comstock could have implications for people in all 50 states, even where abortion is legal right now.

ZIEGLER: So in effect, which is what anti-abortion advocates have known for a while, it could mean a national ban on all abortions, because if you can prosecute anyone for putting anything in the mail related to abortion, there is no abortion in the United States that takes place without something put in the mail, right? There are no abortion providers making, like, DIY drugs and medical devices.

MCCAMMON: So both legal experts and abortion rights advocates tell me they're concerned that some federal courts are willing to consider restricting abortion pills based on this 19th century anti-obscenity law.

RASCOE: That's NPR national correspondent Sarah McCammon. Thank you so much.

MCCAMMON: Thank you. Transcript provided by NPR, Copyright NPR.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.
Sarah McCammon
Sarah McCammon is a National Correspondent covering the Mid-Atlantic and Southeast for NPR. Her work focuses on political, social and cultural divides in America, including abortion and reproductive rights, and the intersections of politics and religion. She's also a frequent guest host for NPR news magazines, podcasts and special coverage.

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