The Comstock Act returns from the dead, post Roe

 While there's no agreement about whether life begins at conception, it appears that the Comstock Act has risen from the dead to play a role in contemporary legal duels about abortion.

CNN brings it all back:

The 150-year-old chastity law that may be the next big fight over abortion By Tierney Sneed

"A law passed 150 years ago that banned the mailing of contraceptives, lewd materials and drugs that induce abortions could provide a pathway for effectively banning abortion nationwide – even in states where the procedure is legal.

"When the Supreme Court last summer reversed Roe v. Wade and eliminated constitutional protections that guaranteed abortion rights nationwide, the conservative majority fashioned its ruling as returning the matter of abortion policy-making to elected officials, particularly in state legislatures.

"But the battle lines now being drawn around the Reconstruction-era federal law – the Comstock Act – are an example of how the picture after Roe v. Wade is far more complicated as abortion opponents are challenging the means of abortion, such as the drug mifepristone, in court.

"The most sweeping Comstock Act arguments from anti-abortion activists could at the very least end the availability of medication abortion, which make up the majority of abortions in the US today, and could have the effect of eliminating surgical abortions as well by restricting the shipment of medical instruments and supplies used in the procedure.

...

"The Comstock Act, first passed in 1873, is named after Anthony Comstock, who was a special agent of the US Postal Service and an anti-vice crusader.

...

"Prosecutions under the law were bought in the first few decades after its passage, but by the 1930s, courts began whittling down some of its provisions and enforcement of the law ceased. Congress meanwhile amended it in the 1970s to remove its ban on mailing birth control.

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"The Biden administration, in an internal advisory opinion released by the Justice Department’s Office of Legal Counsel, argues that the law does not apply to the mailing of abortion pills if they’re not being sent with the intent of unlawful use. The opinion pointed to how 20th century courts had interpreted it narrowly as excluding drugs mailed with legitimate intent."

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Earlier:

Monday, April 10, 2023

Comstockery and abortifacients, on the way to the Supreme Court