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1873 Comstock Act Cited In Court Ruling Banning Mailed Abrtion Pills

A 19th century “anti-vice” law is at the center of a court ruling that threatens access to the leading abortion drug in the U.S. The Comstock Act, dormant for a half-century, has been revived by anti-abortion groups and conservative states seeking to block the mailing of mifepristone, the pill used in more than half of U.S. abortions, reports the Associated Press. On Friday, a federal judge in Texas sided with Christian conservatives in ruling that the Comstock Act prohibits sending the long-used drug through the mail. U.S. District Judge Matthew Kacsmaryk said the Food and Drug Administration’s approval of mifepristone more than two decades ago violated federal rules. Despite overwhelming evidence to the contrary, the Trump appointee said the FDA overlooked “legitimate safety concerns” with the pill, which has been available since 2000. The Biden administration and mifepristone’s main drugmaker filed appeals within hours of the decision.

The Texas ruling came almost simultaneously with an order from a judge in Washington state, who said the FDA must maintain access to the drug in Democratic-led states that filed their own lawsuit. The dueling opinions are expected to send the issue quickly to the Supreme Court. A former lawyer for the conservative First Liberty Institute, Kacsmaryk used the terminology of anti-abortion advocates throughout his opinion, referring to doctors who prescribe mifepristone as “abortionists,” fetuses as “unborn humans” and medication abortions as “chemical” abortions. If upheld, Kacsmaryk’s decision would also dismantle recent FDA changes designed to ease access to mifepristone, particularly a 2021 switch that allowed the drug to be sent through the mail. Originally passed in 1873 and named for an anti-vice crusader, the Comstock Act was intended to prohibit the mailing of contraceptives, “lewd” writings and any “instrument, substance, drug, medicine, or thing” that could be used in an abortion. The law’s scope has been repeatedly narrowed by federal courts and Congress, which eliminated the reference to contraceptives in the 1970s. The federal government hasn’t enforced the law since the 1930s, according to legal experts.


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