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The granting of a nationwide preliminary injunction invalidating the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone will dangerously deprive millions of women of a safe means of abortion.
The opinion—authored by a Trump-appointed conservative judge—is weakly reasoned and reveals the judge’s extremist views. At one point he analogizes abortions to being a form of eugenics—a view also espoused by Justice Clarence Thomas who is cited in the opinion for this analogy. But lurking inside the opinion is an even more potentially dangerous effort by the judge to revive a nearly dormant 19th-century law, the Comstock Act.
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References to the Comstock Act are littered throughout Texas federal district court Judge Matthew Kacsmaryk’s ruling. The Act is an anti-vice law passed in 1873 that prohibits the mailing of “obscene or crime-inciting matter.” Kacsmaryk’s effort to resuscitate this 19th-century relic indicate that the law will play a central role in the post-Roe v. Wade apocalyptic landscape of abortion law.
As described in a December 2022 memorandum by the Justice Department’s Office of Legal Counsel, the original Comstock Act arose from “the handiwork of Anthony Comstock—‘a prominent anti-vice crusader who believed that anything touching upon sex… was obscene.’”
Comstock—who helped found the New York Society for the Suppression of Vice—championed the initial version of the law which forbade the mailing of any drug, medicine or anything “for the prevention of conception, or for causing an unlawful abortion.” The prohibition on contraception and the word “unlawful” were eventually dropped. In its current form found at 18 U.S.C. 1461 (Mailing obscene or crime-inciting matter), the law prohibits “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing device or substance; and every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use” as well as advertising anything falling within these broad categories.
Unsurprisingly, as noted by Eleanor Klibanoff in the Texas Tribune “[t]he Comstock Act was essentially dormant for the entire lifespan of Roe v. Wade, nearly five decades during which the law was on the books but entirely unprosecuted.” With the overruling of Roe v. Wade’s half-century of protection for women’s reproductive rights, anti-abortion activists appear eager to pick up the work begun by Anthony Comstock in 1873.
Used boxes of mifepristone, the first drug used in a medical abortion, at Alamo Women’s Clinic in Albuquerque, New Mexico, U.S., Jan. 11, 2023.
Reuters/Evelyn Hockstein/File PhotoJudge Kacsmaryk—whose radical extreme right views include not only being anti-abortion rights but who has also described transgender people as having a “mental disorder” and gay people as being “disordered”—applies the Comstock Act as a kind of Swiss Army knife to solve any obstacles to his ruling that the FDA approval of mifepristone must be stopped through a preliminary injunction.
The first problem for Kacsmaryk is the legal doctrine of standing—the basic jurisdictional requirement that plaintiffs must show they are affected by the matter they are suing over. Here, the problem is that the plaintiffs are a group of physician medical associations who are trying to argue that the way the FDA approval of the abortion pill affects them is that it forces them to “divert” resources away from “fundraising and membership recruitment” in order to educate their members about the supposed dangers of mifepristone.
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This seems like a weak argument given that the doctors are not the ones harmed by any supposed danger of the drug and the FDA has studied the drug’s safety extensively over the 20-plus years it has been used since its approval in 2000. The years of safe use also present a problem because the granting of a preliminary injunction requires a showing of irreparable harm and a likelihood of success on the merits of the case.
Obviously, it is hard to understand what kind of irreparable harm is so imminent that it hasn’t manifested in the last 20 years and when studies indicate the risks associated with the use of mifepristone may be lower than risks associated with such commonly prescribed drugs as penicillin and Viagra.
Kacsmaryk invokes the Comstack Act to remedy these obstacles with boot-strap reasoning that if there is a law on the books prohibiting the mailing of abortion medicines then the FDA decision to approve the medicine must be flawed. In so doing, he ignores the fact that after the Supreme Court’s landmark Dobbs abortion ruling last year overturning Roe v. Wade the Justice Department issued a memorandum specifically stating that the Comstock Act does not prohibit the mailing of such drugs as mifepristone.
This weak legal reasoning by Judge Kacsmaryk will undoubtedly be attacked by the Department of Justice on appeal but there is reason to worry that the conservative Fifth Circuit Court of Appeals and the same conservative majority in the Supreme Court that overruled Roe v. Wade may ignore the weaknesses of Kacsmaryk’s arguments. The likelihood of SCOTUS action is greatly increased by the ruling by Washington state federal district court Judge Thomas O. Rice issued minutes after Kacsmaryk’s which took the exact opposite stance—blocking the FDA from “altering the status quo and rights as it relates to availability of Mifepristone.”
For one thing, the author of Dobbs, Justice Alito, appears to share Kacsmaryk’s fondness for resurrecting dusty laws. Recall that Alito based part of his reasoning for overruling Roe v. Wade on the opinions of disgraced 17th-century jurist Matthew Hale, who presided over witchcraft trials.
Even more ominous is the fact that the SCOTUS conservative majority shows little regard for deferring to the expertise of agencies like the EPA, CDC and OSHA. Instead, SCOTUS felt free to substitute its own judgment in place of that of scientists when it dismissed regulations by those agencies regarding greenhouse gas emissions and pandemic-related eviction moratoria and vaccine mandates. This kind of judicial supremacist attitude could potentially lead to courts dictating to the DOJ how and when it must apply a near extinct law like the Comstock Act. Once upon a time in America that would have seemed unthinkable, but no longer.
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