海角大神

A 19th century 鈥渁nti-vice鈥� law is at the center of a new court ruling that threatens听access to the leading abortion drug听in the United States.

Dormant for a half-century, the Comstock Act has been revived by anti-abortion groups and conservative states seeking to block the mailing of mifepristone, the pill used in more than half of U.S. abortions.

On Friday, a federal judge in Texas sided with 海角大神 conservatives in ruling that the Comstock Act prohibits sending the long-used drug through the mail.

Here鈥檚 at look at the case and the law:

What happened?听

In a听sweeping ruling, U.S. District Judge听Matthew J. Kacsmaryk听said that the Food and Drug Administration鈥檚 approval of mifepristone more than two decades ago violated federal rules. Despite overwhelming evidence to the contrary, the Donald Trump appointee said the FDA overlooked 鈥渓egitimate safety concerns鈥� with the pill, which has been available since 2000.

The Biden administration and mifepristone鈥檚 main drugmaker filed appeals notices within hours of the decision.

The Texas ruling came almost simultaneously with an order from a judge in Washington state, who said the FDA must maintain access to the drug in Democratic-led states that filed their own lawsuit. The dueling opinions are expected to send the matter quickly to the Supreme Court.

A former lawyer for the conservative First Liberty Institute, Judge Kacsmaryk used the terminology of anti-abortion advocates throughout his opinion, referring to doctors who prescribe mifepristone as 鈥渁bortionists,鈥� fetuses as 鈥渦nborn humans,鈥� and medication abortions as 鈥渃hemical鈥� abortions.

If upheld, Judge Kacsmaryk鈥檚 67-page decision would also dismantle recent FDA changes designed to ease access to mifepristone, particularly a 2021 switch that allowed the drug to be sent through the mail.

What is the Comstock Act?

Originally passed in 1873 and named for an anti-vice crusader, the Comstock Act was intended to prohibit the mailing of contraceptives, 鈥渓ewd鈥� writings, and any 鈥渋nstrument, substance, drug, medicine, or thing鈥� that could be used in an abortion.

The law鈥檚 scope has been repeatedly narrowed by federal courts and Congress, which eliminated the reference to contraceptives in the 1970s. And the federal government hasn鈥檛 enforced the law since the 1930s, according to legal experts.

Judge Kacsmaryk, though, agreed with plaintiffs that the law 鈥� as literally interpreted 鈥� prohibits mailing mifepristone.

The FDA鈥檚 decision allowing the 鈥渄ispensing of chemical abortion drugs through mail violates unambiguous federal criminal law,鈥� he concluded.

Why is the Comstock Act in play now?听

The law was essentially dormant in the 50 years after听Roe v. Wade听established a federal right to abortion. And until the FDA loosened its requirements on mifepristone in 2021, there was no real way to enable abortion through the mail.

But Rachel Rebouch茅 of Temple University鈥檚 law school says anti-abortion groups 鈥� emboldened by the听Supreme Court decision听overturning Roe 鈥� have seized on Comstock to try and shut off the flow of abortion drugs.

鈥淭he fact that pills can be mailed is an existential crisis for the anti-abortion movement 鈥� it鈥檚 hard to police, it鈥檚 hard to track, it鈥檚 difficult to enforce,鈥� said Professor Rebouch茅. 鈥淚f courts are willing to breathe new life into Comstock, it has the potential to shut down the uptake of medication abortion across the country.鈥�

Comstock has also been cited by Republican state officials seeking to stop national pharmacy chains from shipping abortion pills to their states.

In February, attorneys general in 20 conservative-led states听warned CVS and Walgreens听that they could face legal consequences if they sell abortion pills by mail in their states. Most of those states have laws restricting abortion broadly or the pills specifically, but the attorneys general said mail-order mifepristone also runs afoul of the Comstock Act.

How have courts treated the Comstock Act in the past?听

Beginning in the 1930s, federal courts issued rulings drastically narrowing how the law could be applied. Read literally, the law could be interpreted to outlaw almost any medical item that could be used in an abortion.

鈥淭he interpretation being advanced would apply to all kinds of articles 鈥� like surgical gloves 鈥� that are just basic equipment for health care,鈥� Professor Rebouch茅 said.

A key 1936 ruling concluded that the law could only apply when the person mailing an item or drug specifically intended it to be used illegally for abortion.

In December, the Biden administration鈥檚 Justice Department attempted to bolster that interpretation, issuing an opinion that Comstock could not be used to outlaw the mailing of abortion pills because of their many legal uses, including during miscarriages and under abortion-ban exceptions.

Again, Judge Kacsmaryk rejected that view, stating that the law 鈥減lainly does not require intent on the part of the seller.鈥�

What happens next?听

The Supreme Court has never weighed in on Comstock and 鈥� assuming the justices take up the case 鈥� the ruling could have far-reaching consequences for American women, abortion providers, and their opponents.

Judge Kacsmaryk鈥檚 order is limited to mifepristone, but the same approach could potentially be used for other drugs.

Mifepristone is currently taken in听combination with a second pill, misoprostol. Abortion clinics have said that if mifepristone were pulled from the market, they would switch to using only the second drug, which is also used to treat other medical conditions.

Whether Comstock could be used to also curtail shipments of misoprostol is not clear, since it is widely prescribed for other uses.

What if the Supreme Court upholds the abortion pill ruling?

Even if the Supreme Court affirms the Texas ruling and orders mifepristone off the market, experts say there could be more legal battles ahead.

The FDA has its own procedures for revoking drug approvals, which involve public hearings and internal agency reviews. The process can take months or years. If those steps are skipped, mifepristone-maker Danco Laboratories, which is a party to the case, could potentially sue under 鈥渄ue process鈥� claims, according to experts.

The FDA is also facing pressure to essentially ignore a negative court decision, given there is almost no legal precedent for a judge overruling the agency鈥檚 medical determinations.

鈥淭here is no way this decision has a basis in law,鈥� said Democratic Sen. Ron Wyden, of Oregon, in a statement Friday. 鈥淭he FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed.鈥�

Legal experts point out that the FDA has traditionally had broad leeway in deciding how to use its authority. For instance, the agency allows a number of unproven remedies and supplements to remain on the market because they are essentially harmless and removing them would drain limited agency resources.

Given that mifepristone remains safe and effective for ending pregnancy, some experts say the agency should simply allow the pill to remain on the market as an unapproved medication.

鈥淓ven if a court wants to order that the FDA does something, the agency still has discretion in how it does that thing,鈥� Professor Rebouch茅 said.

This story was reported by The Associated Press, whose Health and Science Department receives support from the Howard Hughes Medical Institute鈥檚 Science and Educational Media Group. The AP is solely responsible for all content.