How an old law found new life in lawsuit seeking to revoke approval of abortion pill

[mahatmakanejeeves]

TEXAS ABORTION RESTRICTIONS

How an old law found new life in lawsuit seeking to revoke approval of abortion pill

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.

BY ELEANOR KLIBANOFF MARCH 20, 2023 | 10 HOURS AGO

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

In an Amarillo courthouse last week, lawyers seeking to move abortion medication off the market focused less on the existential question of when life begins — and more on the procedural question of when a law dies.

The lawsuit focuses on the Food and Drug Administration’s approval of mifepristone, an abortion-inducing drug. But lawyers for the Alliance Defending Freedom took the opportunity to appeal to a higher power — U.S. District Judge Matthew Kacsmaryk — to resurrect a long-dormant law that would upend abortion access in the United States.

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.

Now, with Roe off the table, anti-abortion groups want Kacsmaryk to affirm that Comstock is good law and can be applied broadly, not just to unlawful abortions, as the Department of Justice under President Joe Biden has posited.

{snip}

[mahatmakanejeeves]

1. Abortion pill mifepristone ruling in Texas case could hinge on 1873 Comstock Act

HEALTH AND SCIENCE

Abortion pill mifepristone ruling in Texas case could hinge on 1873 Comstock Act

PUBLISHED TUE, MAR 21 2023 | 10:43 AM EDT | UPDATED 4 HOURS AGO

KEY POINTS
• U.S. District Judge Matthew Kacsmaryk raised the Comstock Act repeatedly in last week’s hearing in the case challenging FDA approval of mifepristone.
• The 1873 Comstock Act declared “obscene” materials as not mailable, including drugs advertised for use in abortions.
• The Comstock Act hasn’t been enforced in decades. The DOJ says it doesn’t ban mail delivery of mifepristone, citing court cases that narrowed the law’s scope.
• But Kacsmaryk could potentially issue an order invoking the Comstock Act to roll back FDA regulatory changes that allowed mifepristone mail delivery.

A federal judge in Texas may try to invoke an obscure 19th-century law called the Comstock Act to roll back mail delivery of the abortion pill mifepristone.

Judge Matthew Kacsmaryk of the U.S. Northern District of Texas heard oral arguments Wednesday in a closely watched case in which medical associations who oppose abortion are challenging the Food and Drug Administration’s approval of mifepristone. At the hearing’s conclusion, Kacsmaryk said the court will issue an order and opinion “as soon as possible.”

The central aim of the Alliance for Hippocratic Medicine, the antiabortion group that filed the lawsuit, is to pull mifepristone from the U.S. market. But Kacsmaryk could stop short of blocking sales and instead order the FDA to impose tougher restrictions on how the pill is distributed, legal experts said.

His rationale could hinge in part on the Comstock Act. He raised the 1873 law repeatedly during last week’s hearing, and appeared more sympathetic to the arguments laid out by the Alliance for Hippocratic Medicine’s attorneys than those presented by the government’s lawyers.

{snip}