Mifepristone Oral Arguments Portend Conservative Push to Resurrect Comstock Act

WASHINGTON, D.C., March 26, 2024 – Today the Supreme Court held oral arguments in the cases that threaten access to the abortion drug mifepristone across the United States. While most of the justices seemed unimpressed by the claims brought by the anti-abortion activist doctors who fear ever having to provide abortion-related care, Justices Thomas and Alito appeared eager to resurrect enforcement of a dormant 1873 law known as the Comstock Act.

The archaic law prohibits using the postal service to mail “obscene” materials, which includes “lewd materials,” contraceptives, and any tool or drug that could be used in an abortion. Thanks to past Supreme Court rulings, the Comstock Act was basically never enforceable, but it was still on the books. The overturning of Roe, however, opened the door for either a court or a motivated Department of Justice to enforce the anti-vice law anew.

Alliance for Justice President Rakim H.D. Brooks issued the following statement:

“Today’s oral arguments suggest that access to mifepristone will continue as it has for decades. But the fight is clearly not over. Justices Thomas and Alito are disturbingly eager to resurrect the Comstock Act, which would impose draconian 19th century values on the entire nation, threatening abortion care nationwide, possibly contraception, and more. No matter the outcome of this case, religious rightwing interests are still coming for the freedoms we hold dear. We must be ready for it. It’s far past time for us to tell this Court to leave us alone.”