Republican Medication Abortion Ban Could Be Supported by Outdated Law

Access to medication abortions in the U.S. could be curbed by using an obscure 19th-century law, Axios reported.

Experts and advocates on both sides of the debate say the next Republican president could use the 1873 Comstock Act to ban abortions through a policy change at the Department of Justice.

That Comstock Act banned the mailing of “obscene” material such as pornography, contraception, and abortion drugs.

More than half of abortions in the U.S. are the result of using two drugs, mifepristone and misoprostol, in the first 10 weeks of pregnancy.

“If [Donald] Trump were elected, not only would I not be surprised, but I would expect the administration to direct DOJ to overturn its guidance on the Comstock Act and rule that shipping mifepristone through the U.S. Postal Service is a violation of that statute,” Lawrence Gostin, a Georgetown Law professor who supports abortion rights, told Axios.

He added that doing so “would create a significant impediment to access to the most common, safest and most effective method of getting an abortion.”

The Heritage Foundation has proposed detailed policies for a potential Republican administration. The group says Comstock “unambiguously prohibits mailing abortion drugs” and says the next administration should “enforce federal law against providers and distributors of [abortion] pills.”

The Biden administration’s DOJ maintains that the law “doesn’t prohibit mailing abortion drugs when the sender expects them to be used lawfully,” according to Axios.

The administration in September took its battle to preserve broad access to the abortion pill mifepristone to the U.S. Supreme Court as it appealed a lower court’s ruling that would curb how the drug is delivered and distributed.

Pro-abortion advocates likely would sue to ensure abortion drugs can be mailed.

“It’s tailor-made for a Supreme Court that considers itself textualist,” said Mary Ziegler, a UC Davis law professor and legal historian, Axios reported. “There’s a plausible argument that the language of the statute is unambiguous.”

After Ohio voters earlier this month approved a constitutional amendment protecting the right to abortion and other forms of reproductive healthcare, advocates on both sides of the issue are looking at how they can get support on 2024 ballots in at least a dozen states.

Constitutional amendments to protect access are already on the ballots for 2024 in Maryland and New York.

A group of Republican attorneys general in February sent a latter warning CVS and Walgreens against mailing and distributing abortion pills — even though the Food and Drug Administration permits retail pharmacies to do so. The letter referenced the Comstock Act.

The Associated Press contributed to this story.