Several conservative groups determined to restrict access to abortion across the United States are banking on a law adopted in 1873 on the initiative of a Puritan activist who wanted to “suppress vice”.
The Comstock Act, named after Anthony Comstock, was written to prevent the mailing of “indecent” or “immoral” items and was intended to apply in particular to writing, contraception and any “drug, medicine or object” that could lead to termination of pregnancy.
It is a “ridiculous tool” to try to block access to abortion in the United States today, but it is a “real threat” in a context where judges have shown their willingness to ignore, if necessary, any case law, warns Amy Friedrich-Karnik, director of federal policies at the Guttmacher Institute.
Rachel Rebouché, a law professor at Temple University, notes that the Compstack Act was applied briefly in the decades following its adoption before seeing its scope restricted and falling into oblivion.
It was notably modified to exclude the passage limiting the sending of contraceptives, but the section on abortifacient products remained unchanged and returned to the fore with the reversal of the judgment Roe v. Wade in 2022 by the Supreme Court.
Some groups, such as the Heritage Foundation, argue that the Stack Act makes it illegal to mail mifepristone and misoprostol, which are used in the majority of abortions in the United States.
They also maintain that it even blocks the shipment of items required for the operation of medical clinics performing abortions and could therefore result in the equivalent of a national ban.
Although the scope of the text only applies according to case law to illegal abortions, it could “create problems” if it is interpreted more forcefully and complicate access to abortion, warns Mme Recorked.
Disputes in sight?
Two Supreme Court justices cited the Comstock Act in a recent case aimed at restricting access to mifepristone, even though the issue was not at the heart of the issues. Judge Clarence Thomas notably asked the lawyer for the company producing the drug during a hearing how it would respond to the argument that sending the product by mail contravenes the law.
Professor Rebouché notes that the case in question, launched by a Texan organization, risks being rejected for a technical question without the court ruling on the merits of the case. However, it would not be surprising, according to her, if the two magistrates underlined in this context the potential legal interest of the Comstock law.
Mary Ziegler, a law professor at the University of California, Davis, believes such a move would galvanize antiabortion organizations to mount additional legal challenges with a view to eventually allowing the Supreme Court to directly address the issue. subject.
The law, she says, cannot be legally interpreted as restrictively as its supporters claim.
The real question is rather whether their argument is “too ridiculous” to prevent the Supreme Court from taking it up, underlines the lawyer, criticizing the influence of the conservative majority within the court.
The composition of the next American government could have a significant impact on what happens next.
While President Joe Biden’s administration ruled that the Comstock Act was limited in scope and could only apply to illegal abortions, a new administration led by Donald Trump could read it more broadly and launch lawsuits. against suppliers of medicines acting legally.
PHOTO AMANDA ANDRADE-RHOADES, ASSOCIATED PRESS ARCHIVES
Some groups argue that the Stack Act makes it illegal to mail mifepristone, the pill used in more than half of all abortions in the United States.
The Republican presidential candidate said Monday that he is not interested in a national ban on abortion and intends to leave it up to the states themselves to decide what policy to implement.
His speech is inspired by electoral considerations and reflects the reservations of the American population in the face of a large-scale ban, underlines Professor Rebouché, who would not be surprised to see him demand energetic application of the Comstock law in the event of victory.
Elisa Wells, one of the founders of Plan C, an organization promoting broad access to medical abortion, believes that federal authorities will not be able to stop the mail distribution of mifepristone and misoprostol.
The volume of mail in circulation as well as the great diversity of suppliers and “paths” to obtain these drugs mean that the exercise would be a failure, she said. In this context, the mention of the Comstock law constitutes a “desperate effort” by anti-abortion organizations.
“They will not succeed in preventing access to these drugs in the United States,” judges Mme Wells.
Arizona deems almost total ban on abortion valid
Arizona’s highest court ruled Tuesday that an 1864 law banning almost all abortions was applicable, a symbolic decision with important electoral implications a few months before the presidential election in this key southwestern state. the United States. This law prohibits any abortion from the moment of conception, unless the mother’s life is in danger. Rape or incest are not considered valid exceptions. However, Arizona Attorney General, Democrat Kris Mayes, has long warned that she would not initiate any prosecution.
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