The abortion pill fight isn’t over. Foes look to 1873 obscenity law while providers vow to ensure access
While the U.S. Supreme Court appears poised to keep a widely used abortion pill available for now, some conservative justices signaled an interest in considering whether a 151-year-old indecency law should prevent American women from receiving the drug by mail.
A majority of the court indicated during arguments Tuesday they weren’t convinced a group of conservative doctors had legal standing to oppose Food and Drug Administration approval of mailing doses of mifepristone, a drug now used in more than half of all abortions. But Justices Clarence Thomas and Samuel Alito asked about the reach of the Comstock Act, a law passed in 1873 that prohibits mailing of “lewd materials” and drugs used to terminate a pregnancy.
The prospect of a future challenge based on that law, which hasn’t been enforced for decades, is a concern for abortion advocates. They’ve faced a widening battle since the high court overturned the landmark Roe v. Wade decision in 2022, clearing the way for tougher restrictions or bans on the procedure in Republican-led states.
“Do we think the Supreme Court majority is going to rule on the Comstock Act in this case? The answer to that is no,” said Mary Ziegler, a law professor at the University of California at Davis who specializes in reproductive rights. “Do we think that the Comstock Act is going to come up again at some point in the future? The answer to that is definitely.”
The high court won’t rule for a few months on the case challenging the FDA’s approval of mifepristone, and it isn’t clear that any justices beyond Alito and Thomas are interested at this stage in applying the Comstock Act. But the doctors and a conservative legal group behind the case cited the law as one reason to roll back FDA’s 2021 decision that permitted the drug to be distributed to patients through the mail. And abortion opponents could revive the argument in a future case, particularly if Alito and Thomas signal they are receptive.
Abortion opponents have been trying for years to use the anti-obscenity measure as a means to restrict abortion, through city and state statutes and attempts at litigation. They’re also hopeful that, should former president Donald Trump be elected again in November, he could direct the Justice Department to start prosecuting abortion providers and drug manufacturers. Under the Biden administration, the DOJ said the law does not apply to abortion pills.
“If the Justice Department took a different position on the Comstock Act, that would obviously be a major game changer,” Ziegler said.
Abortion providers and advocates say preventing mail distribution of mifepristone will make the abortion pill harder to obtain and possibly more expensive, even in states where the procedure remains legal. They’ve warned that it could lead to fewer providers offering the drug and longer wait times at abortion clinics that have already been struggling to meet demand since the Supreme Court ended federal constitutional protections for abortion.
To be sure, ending all mail distribution of the drug may be difficult even if banned by Supreme Court ruling. Some providers say they are poised to start mailing a one-pill abortion method that uses only misoprostol, the second pill in the existing regimen. Misoprostol is effective at terminating a pregnancy on its own, but is known to cause more discomfort for patients than the two-pill combination.
And some distributors said they will continue to send mifepristone through the mail.
“It doesn’t matter where it is coming from or where it is going, mifepristone will be there in the U.S. for women to use,” said Rebecca Gomperts, a doctor who founded Aid Access, an international organization that assists women who are unable to access local abortion services. “The Supreme Court cannot do anything about that. You cannot take away the need for an abortion with these kinds of rulings.”
Gomperts said Aid Access will continue to prescribe and mail the abortion pill to women in all 50 states, regardless of the ruling. Hey Jane, another prominent online abortion pill provider, said it will also continue providing telemedicine abortion care that includes mifepristone.
FDA decisions allowing the pill to be prescribed via telehealth and shipped to patients at home have expanded access to abortion across the country — even in the more than two dozen states that have strict bans on abortion.
Before the FDA widened access, medication abortion couldn’t be used at home. Women had to make three visits to a clinic or doctor’s office to terminate their pregnancy, taking the appropriate dosage of each medication during separate visits to the medical office.
“For some patients, losing a telehealth option for mifepristone would mean losing access altogether,” said Julia Kaye, a senior staff attorney at the American Civil Liberties Union. She pointed to low-income women or those in rural areas who might face obstacles traveling to a provider willing to prescribe and dispense the drug, even if they live in a state that allows abortion.
Being able to access the pill through the mail has allowed patients to maneuver around state laws that restrict the procedure. It’s difficult to determine how prevalent medication abortion is in such places, as the latest data on the prevalence of medication abortion does not include pills mailed to people in states with abortion bans.
Gomperts said Aid Access mails about 9,000 doses of abortion medication to women in the U.S. each month, with roughly two-thirds of the doses going to people living in states that restrict the procedure.
“Research has shown overwhelmingly that it is safe for women to do their own abortion,” she said. “This is beyond any doubt.”
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(With assistance from Greg Stohr.)
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