Anti-abortion advocates are trying to revive the long-dormant 1873 Comstock Act, which banned mailing of anything related to abortion or contraception, in a lawsuit about mifepristone, an abortion-inducing drug.
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The Comstock Act of 1873 banned the mailing of anything related to contraception or abortion. The contraception clauses were removed in 1971, and the law was entirely unenforced during the five-decade reign of Roe v. Wade. The law initially outlawed the mailing of any “obscene, lewd or lascivious” writings; anything intended to prevent pregnancy; and “every article or thing designed, adapted or intended for producing abortion.”
Most of the court rulings focused on contraception, reading Comstock narrowly to apply only when someone “knowingly” mailed something that would be used in violation of existing laws on abortion or contraception. “It would of course have been impossible for Congress to ratify a ‘consensus interpretation’ that never existed,” Whelan wrote.
The lawsuit is only tenuously connected to the issue of mailing medication. The original complaint focuses on whether the FDA erred in approving mifepristone in 2000 and subsequently relaxing restrictions on the drug. Someone sending these drugs through the mail “typically will lack complete knowledge” of whether the drugs are being used lawfully, the memo reads.
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