|Anti-abortion activists march in front of the U.S. Capitol on January 21, 2022. (Brendan Smialowski / AFP / Getty)
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For those keeping up with the abortion fight in America, the news of recent days has felt like watching a game of ping-pong with very serious stakes. On Friday, two federal judges released contradicting opinions on mifepristone, one of two drugs used to induce a medication abortion. Texas district-court Judge Matthew J. Kacsmaryk ruled that the FDA erred when it first approved mifepristone in 2000. Mere minutes later, news broke that Judge Thomas O. Rice of the Eastern District of Washington State had ordered the FDA to preserve access to the medication in a suit filed by 17 states and Washington, D.C.
Kacsmaryk’s ruling, which would have blocked mifepristone access nationwide, was set to go into effect within seven days barring an appeal—but an appeal came just this afternoon from the Justice Department. The department has asked Fifth Circuit Court of Appeals judges to keep the Texas order on hold until the appeal is decided. However these next stages play out, it is very likely that the Supreme Court will eventually step in to adjudicate between Friday’s two conflicting federal rulings.
Beyond all of this complicated legal volleying is a simpler story: The future of abortion in America is being decided in the country’s courtrooms. As I noted in February, abortion policy is at something of a standstill in Washington; a nationwide abortion ban would have no chance of passing the majority-Democrat Senate, and there isn’t much Congress can do to restore an ironclad federal right to abortion either. But in America’s courts, the fight is escalating—and recent developments are signaling a possible new strategy for the anti-abortion movement, which consists of reinterpreting a 19th-century law to influence abortion access nationwide.
The Texas ruling “is not just a bid to block access to abortion pills,” the legal scholar Mary Ziegler explained in an article yesterday. “It is an open invitation to anti-abortion-rights groups to use the Comstock Act—a law passed 150 years ago and rarely enforced in the past century—to seek a nationwide federal ban on all abortions.”
The federal Comstock Act of 1873 is an anti-vice law that prohibited the mailing of “every article or thing designed, adapted, or intended for producing abortion,” as well as anything “advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” The FDA has long followed a consensus interpretation of the Comstock Act, allowing the mailing of abortion drugs when the seller doesn’t intend for them to be used unlawfully. But reinterpreting this act would essentially ban even lawful abortion procedures. As Ziegler puts it:
No abortion method exists in the United States that does not use something “designed, adapted, or intended for abortion” and sent through the mail or via another carrier. Abortion clinics do not make their own drugs or devices; they order these items from pharmaceutical-distribution companies and medical-equipment suppliers. Taken to its logical conclusion, Kacsmaryk’s ruling means that all abortions already violate criminal law.
Abortion opponents are aware of the consequences of reinterpreting the Comstock Act, Ziegler writes—and they’re also aware that doing so “is the only realistic way to force through a national ban” in a country where strict anti-abortion policies repel a majority of voters.
“That’s because it has nothing to do with what the American people want or what the Constitution means,” Ziegler argues in her article. “Anti-abortion-rights activists have made the same bet that Judge Kacsmaryk has: They have not captured the hearts or minds of the American people, but they may have captured the courts.”
I called Ziegler today, after the Justice Department’s appeal, to get her take on what happens next. She told me that if the conflicting mifepristone rulings make their way to the Supreme Court, which they’re likely to do, it’s worth noting that the Texas decision that would block the abortion medication was “designed to appeal to these conservative justices, not just because of their views on abortion but also because they’re hostile to the administrative state”—in other words, agencies such as the EPA and the FDA.
“I don’t think you can rule anything out,” Ziegler told me. “We’re in a world where the Supreme Court is not behaving in a way we’re used to.”