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Revival of Comstock Act in American Abortion Debates
In the 2020s, the Comstock Act of 1873 has been mentioned and/or relied upon in federal legal cases involving pills used for medication abortion (e.g., mifepristone) that can be mailed. The Comstock Act has also been mentioned by political actors as a possible way to restrict abortion without Congressional action. See also section "Jurisprudence on Comstock Act."

On May 13, 2024, the state of Texas and two professors at the University of Texas at Austin filed a federal lawsuit in which they argued that University of Texas faculty may refuse to accommodate the absences of students in their classes who have violated the Comstock Act (for example, by missing class to obtain an abortion). They also argued that they may refuse to hire a teaching assistant who has violated the Comstock Act.

During oral arguments in the United States Supreme Court on March 26, 2024 Food and Drug Administration v. Alliance for Hippocratic Medicine considering regulation of mifepristone a drug commonly used for miscarriage treatment and medication abortion), Justice Samuel Alito asked Solicitor General of the United States Elizabeth B. Prelogar about the Comstock Act using its number: 18 U.S.C. 1461.

In the United States Court of Appeals for the Fifth Circuit, Judge James C. Ho’s dissent in Alliance for Hippocratic Medicine v. Food and Drug Administration (August 16, 2023) repeatedly cited the Comstock Act. Judge Ho argued that the Federal Drug Administration's 2021 rules for mifepristone violated the Comstock Act citing 18 U.S.C. §§ 1461–62. Judge Ho specified mifepristone as an "abortifacient” that Comstock made illegal.

In a February 2024 interview with The New York Times, attorney Jonathan F. Mitchell asserted that the Comstock Act can be used to ban abortion without Congressional action: “We don’t need a federal ban when we have Comstock on the books.” Mr. Mitchell said he hoped Former President Trump "doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth” and “I think the pro-life groups should keep their mouths shut as much as possible until the election.” Mr. Mitchell represented Former President Donald Trump before the Supreme Court over whether the former president could appear on the ballot in Colorado and contributed to the creation of the Texas Heartbeat Act, Senate Bill 8 (SB 8).

The Heritage Foundation's Project 2025 section on abortion access indirectly refers to the Comstock Act as "federal laws that prohibit the distribution of abortion drugs by postal mail."

The Comstock Act of 1873 and 24 state-level “Little Comstocks” criminalized the use of the United States Postal Service to send obscenity, contraceptives, abortifacients, sex toys, personal letters with any sexual content or information, or any information regarding the above. The Act made it illegal (up to 5 years of hard labor) to sell, lend, or give away any “obscene” publication or article used for contraception or abortion. The Act is codified at 18 U.S.C. Chapter 71, §§ 1460–1470 with the most essential material in §1461 and has been amended five times.

The 43rd United States Congress passed the Comstock Act[s] on March 2, 1873 as the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use and President Ulysses S. Grant signed it into law on March 3, 1873. The act is associated with U.S. Postal Inspector and anti-vice activist Anthony Comstock.

In the 21st century, judges and lawmakers cite the Comstock Act as a possible justification for criminalizing the mailing of abortion medication. In 2022, the U.S. Department of Justice argued that mailing abortion drugs does not violate the Comstock Act. In 2023, a federal judge mentioned the Comstock Act in a ruling about the medication abortion drug mifepristone (Judge Matthew J. Kacsmaryk, Alliance for Hippocratic Medicine et al v. U.S. Food and Drug Administration et al, (2023). The United States appealed the case and it is currently being decided by the United States Supreme Court. In 2024, 20 Republican attorneys general relied upon the Comstock Act when they wrote to Walgreens and CVS objecting against the distribution of abortion pills. In 2024, Sen. Tina Smith (D-Minn.) suggested a plan to repeal the Comstock Act.

Some contemporary American judges and lawmakers cite the Comstock Act as a possible justification for criminalizing the mailing of abortion medication while others deny that justification and/or call for the Comstock Act's repeal.

The restrictions on birth control in the Comstock laws were effectively rendered null and void by Supreme Court decisions Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). Furthermore Congress removed the restrictions on contraception in 1971 but let the rest of the Comstock law stand.

After the June 2022 decision in Dobbs v. Jackson Women's Health Organization, the enforceability of the Comstock laws became the subject of legal disputes. On April 7, 2023, Matthew J. Kacsmaryk, a district court judge in Texas ruled in the case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration that the Comstock Act made mailing of abortifacients illegal, conflicting with a ruling by district court judge Thomas O. Rice in Washington who issued an opposite ruling on the very same day. The Supreme Court heard the appeal on March 26, 2024.

Text
This original Section 211 (enacted 1873) of the Federal Criminal Code (considered to be the "parent" of all the Comstock laws) criminalizes the mailing of two types of material: (1) printed material and physical objects deemed to be "indecent" and "immoral" and (2) printed material, physical objects, substances, medicine) related to birth control, abortion, and reproductive health. The law specifically criminalizes the mailing of speech: communication regarding information about or access to birth control, abortion, and reproductive health.

Text relevant to "decency:

"Every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character" and "every article or thing designed, adapted, or intended for preventing conception or producing abortion, or for any indecent or immoral use...

Text relevant to birth control, abortion, and reproductive health:

"[E]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing conception or producing abortion, or for any indecent or immoral purpose...

Text relevant to communication regarding exchanging information about or access to birth control, abortion, and reproductive health:

"[E]very written or printed card, letter, circular, book, pamphlet advertisement, or notice of any kind giving information directly or indirectly, where, or how, or of whom, or by what means any of the hereinbefore-mentioned matters, articles or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed or how or by what means conception may be prevented or abortion may be produced... whether sealed or unsealed; and every letter, packet, or package, or other mail matter containing"

he Comstock Act of 1873 and 24 state-level “Little Comstocks” criminalized the use of the United States Postal Service to send obscenity, contraceptives, abortifacients, sex toys, personal letters with any sexual content or information, or any information regarding the above. The Act made it illegal (up to 5 years of hard labor) to sell, lend, or give away any “obscene” publication or article used for contraception or abortion. The Act is codified at 18 U.S.C. Chapter 71, §§ 1460–1470 with the most essential material in §1461 and has been amended five times.

The 43rd United States Congress passed the Comstock Act[s] on March 2, 1873 as the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use and President Ulysses S. Grant signed it into law on March 3, 1873. The act is associated with U.S. Postal Inspector and anti-vice activist Anthony Comstock.

In the 21st century, judges and lawmakers cite the Comstock Act as a possible justification for criminalizing the mailing of abortion medication. In 2022, the U.S. Department of Justice argued that mailing abortion drugs does not violate the Comstock Act. In 2023, a federal judge mentioned the Comstock Act in a ruling about the medication abortion drug mifepristone (Judge Matthew J. Kacsmaryk, Alliance for Hippocratic Medicine et al v. U.S. Food and Drug Administration et al, (2023). The United States appealed the case and it is currently being decided by the United States Supreme Court. In 2024, 20 Republican attorneys general relied upon the Comstock Act when they wrote to Walgreens and CVS objecting against the distribution of abortion pills. In 2024, Sen. Tina Smith (D-Minn.) suggested a plan to repeal the Comstock Act.

Some contemporary American judges and lawmakers cite the Comstock Act as a possible justification for criminalizing the mailing of abortion medication while others deny that justification and/or call for the Comstock Act's repeal.

The restrictions on birth control in the Comstock laws were effectively rendered null and void by Supreme Court decisions Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). Furthermore Congress removed the restrictions on contraception in 1971 but let the rest of the Comstock law stand.

After the June 2022 decision in Dobbs v. Jackson Women's Health Organization, the enforceability of the Comstock laws became the subject of legal disputes. On April 7, 2023, Matthew J. Kacsmaryk, a district court judge in Texas ruled in the case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration that the Comstock Act made mailing of abortifacients illegal, conflicting with a ruling by district court judge Thomas O. Rice in Washington who issued an opposite ruling on the very same day. The Supreme Court heard the appeal on March 26, 2024.