![](https://i.imgur.com/CLvY2jA.png")
09-04-2023, 02:14 PM
By MATTHEW PERRONE
yesterday
WASHINGTON (AP) — A 19th century “anti-vice” law is at the center of a new court ruling that threatens access to the leading abortion drug in the U.S.
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.
......
In a sweeping ruling, U.S. District Judge Matthew J. Kacsmaryk said that the Food and Drug Administration’s 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 “legitimate safety concerns” with the pill, which has been available since 2000.
......
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, “lewd” writings and any “instrument, substance, drug, medicine, or thing” that could be used in an abortion.
The law’s scope has been repeatedly narrowed by federal courts and Congress, which eliminated the reference to contraceptives in the 1970s. And the federal government hasn’t enforced the law since the 1930s
......
Kacsmaryk, though, agreed with plaintiffs that the law — as literally interpreted — prohibits mailing mifepristone.
......
WHY IS THE COMSTOCK ACT IN PLAY NOW?
The law was essentially dormant in the 50 years after Roe v. Wade established a federal right to abortion.
......
anti-abortion groups — emboldened by the Supreme Court decision overturning of Roe — have seized on Comstock to try and shut off the flow of abortion drugs.
......
HOW HAVE COURTS TREATED THE COMSTOCK ACT IN THE PAST?
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.
......
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’s 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, Kacsmaryk rejected that view, stating that the law “plainly does not require intent on the part of the seller.”
WHAT HAPPENS NEXT?
The Supreme Court has never weighed in on Comstock and — assuming the justices take up the case— the ruling could have far-reaching consequences for American women, abortion providers and their opponents.
Kacsmaryk’s order is limited to mifepristone, but the same approach could potentially be used for other drugs.
......
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 “due process” 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’s medical determinations.
......
“Even if a court wants to order that the FDA does something, the agency still has discretion in how it does that thing,” Rebouché said.
https://apnews.com/article/comstock-act-...7dd6d4e337
yesterday
WASHINGTON (AP) — A 19th century “anti-vice” law is at the center of a new court ruling that threatens access to the leading abortion drug in the U.S.
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.
......
In a sweeping ruling, U.S. District Judge Matthew J. Kacsmaryk said that the Food and Drug Administration’s 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 “legitimate safety concerns” with the pill, which has been available since 2000.
......
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, “lewd” writings and any “instrument, substance, drug, medicine, or thing” that could be used in an abortion.
The law’s scope has been repeatedly narrowed by federal courts and Congress, which eliminated the reference to contraceptives in the 1970s. And the federal government hasn’t enforced the law since the 1930s
......
Kacsmaryk, though, agreed with plaintiffs that the law — as literally interpreted — prohibits mailing mifepristone.
......
WHY IS THE COMSTOCK ACT IN PLAY NOW?
The law was essentially dormant in the 50 years after Roe v. Wade established a federal right to abortion.
......
anti-abortion groups — emboldened by the Supreme Court decision overturning of Roe — have seized on Comstock to try and shut off the flow of abortion drugs.
......
HOW HAVE COURTS TREATED THE COMSTOCK ACT IN THE PAST?
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.
......
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’s 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, Kacsmaryk rejected that view, stating that the law “plainly does not require intent on the part of the seller.”
WHAT HAPPENS NEXT?
The Supreme Court has never weighed in on Comstock and — assuming the justices take up the case— the ruling could have far-reaching consequences for American women, abortion providers and their opponents.
Kacsmaryk’s order is limited to mifepristone, but the same approach could potentially be used for other drugs.
......
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 “due process” 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’s medical determinations.
......
“Even if a court wants to order that the FDA does something, the agency still has discretion in how it does that thing,” Rebouché said.
https://apnews.com/article/comstock-act-...7dd6d4e337
