There’s way too much celebrating going on around the unanimous Supreme Court decision yesterday that The New York Times characterized with the headline, “Supreme Court Maintains Broad Access to Abortion Pill” and The Washington Post headlined, “Supreme Court upholds broad access to key abortion pill mifepristone.”
In fact, the Supreme Court took no such stand with regard to mifepristone, abortion, Plan B, or even contraception. They merely said that the doctors who brought the case had not yet suffered any actual harm themselves, and therefore had no basis to sue in the first place.
Turning the case down was also a quick-and-easy way for the Republican justices on the Court to get out from under the spotlight glaring on personal corruption, bribe-taking, and their other anti-woman decisions, causing people to think that maybe they can be reasonable, Sam Alito arguing otherwise notwithstanding.
As Justice Kavanaugh wrote in the unanimous opinion:
“Article III of the Constitution confines the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’ … As Justice Scalia memorably said, Article III requires a plaintiff to first answer a basic question: ‘What’s it to you?’” … In sum, to sue in federal court, a plaintiff must show that he or she has suffered or likely will suffer an injury in fact.”
The case syllabus identifies the wacky, anti-abortion doctors group that had sued, noting:
“Plaintiffs are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others. Because plaintiffs do not prescribe or use mifepristone, plaintiffs are unregulated parties who seek to challenge FDA’s regulation of others. Plaintiffs advance several complicated causation theories to connect FDA’s actions to the plaintiffs’ alleged injuries in fact. None of these theories suffices to establish Article III standing.” (emphasis in original)
Notice that there’s not a word in there about the Court ruling on any aspect of this case. That’s because they didn’t — media headlines notwithstanding — “uphold” or “maintain broad access” to mifepristone. They just said that because these doctors don’t use the drug, have never experienced a bad side effect from it, and have never had a patient harmed by it, that they don’t have a right to sue.
Therefore, the Supreme Court rejected this group’s argument that mifepristone should be criminalized not because they believe it should be available but because — and only because — it was the wrong group suing.
As Kavanaugh wrote in the decision, providing a clear and easily followed roadmap for the next group to bring a similar case before the Court but with standing:
“But the plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything. Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain. Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs’ other standing theories suffice. Therefore, the plaintiffs lack standing to challenge FDA’s actions.” (emphasis Kavanaugh’s)
So, what’s next?
The anti-abortion freaks will now be scouring the country to find a person who was actually harmed by mifepristone, be it by a side-effect, an incomplete abortion, or maybe a husband who — like the man in Texas currently suing his ex-wife’s girlfriends who helped her get an abortion — they claim they’ve been “deprived of a child” they wanted that their wife took away with mifepristone. Or a doctor who prescribed it and now has regrets.
Once they have a case that will pass the standing test, then it’ll be full-tilt-boogie going forward. I’d be surprised if such a case isn’t successfully litigated at the district court level by the end of this year, perhaps getting it to the Supreme Court next spring so they can finally put an end to medication abortions (that are now nearly 60 percent of all abortions) all across the nation.
How will they do this?
Once standing is established, they’ll continue to argue that the Comstock Act — even though it hasn’t been enforced in decades — is still on the books and still outlaws sending anything having to do with abortion or birth control through the mail (including educational material).
Multiple Republican legislators have already made this argument, as did District Judge Matthew Kacsmaryk when he first ruled on the mifepristone case that the Court just threw out for lack of standing.
Twenty-six Republican senators filed an amicus brief with the Court in yesterday’s case specifically referring to the Comstock Act. It said:
“The FDA’s 2021 action sanctions the shipment of abortion drugs, including through mail-order pharmacies, which violates longstanding federal laws. Congress has barred the abortion industry from using the United States Postal Service to mail abortion-inducing drugs, including the chemical abortion regimen of mifepristone and misoprostol. See 18 U.S.C. § 1461. [Comstock Act]
“Congress has separately prohibited the abortion industry from shipping abortion-inducing drugs through common carriers. See 18 U.S.C. § 1462. [Comstock Act] These provisions have been federal policy for more than a century. … Congress has never removed the prohibition on mailing chemical abortion drugs.”
Nor has Congress repealed other aspects of the Comstock Act that are even more onerous. This will come back again, unless Congress eliminates the Comstock Act (Representative Cori Bush proposed such legislation, but it’s being blocked by Speaker Mike Johnson and other Republicans in the House).
After all, during the oral arguments in yesterday’s case, Justice Sam Alito said the quiet part out loud:
“This [Comstock Act] is a prominent provision. It’s not some obscure subsection of a complicated, obscure law. Everybody in this field knew about it.”
Erin Hawley (the attorney for the doctors and the wife of Republican Senator Josh Hawley) was emphatic:
“We don’t think that there’s any case of this court that empowers FDA to ignore other federal law. The Comstock Act says that drugs should not be mailed … either through the mail or through common carriers.”
And Clarence Thomas laid out the possibility of future litigation when he essentially threatened the lawyer for Danco Laboratories, the manufacturer of Mifepristone:
“How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” He went onto note that the law “is fairly broad, and it specifically covers drugs such as yours.”
Former NY Postmaster and anti-pornography crusader Anthony Comstock lobbied for and shepherded through Congress his law; it passed on March 3, 1873 and was titled “An Act for the Suppression of Trade in, and Circulation of, obscene Literature and Articles of immoral Use.” Today we refer to it as the Comstock Act.
Its language with regard to abortion is not at all ambiguous:
“Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance … designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and
“Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and
“Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and
“Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and
“Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—
“Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” (emphasis mine)
The penalty is also not ambiguous. Persons mailing information about abortion, or drugs or devices to produce an abortion:
“[S]hall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.” (emphasis mine)
Republican members of Congress want the Comstock Act enforced nationwide now. They point out that they don’t even need a ruling from the Supreme Court: they just need a Republican president who will direct his Department of Justice and FBI to root out all those women who are getting mifepristone through the mail and throw them in prison.
Along with the docs and nurses, clinics and hospitals, and even newspapers and magazines (and their writers and publishers) who may write about mifepristone in a way Republicans could construed as informing women about what mifepristone is and how to use it.
After all, the Comstock Act is still on the books. All it requires is an administration willing to enforce it.
In a threatening letter sent to CVS (among other pharmacy chains), Mississippi Republican Senator Cindy Hyde-Smith and eight other Republican senators (Lankford, Daines, Braun, Rubio, Marshall, Risch, Crapo and Blackburn) wrote that the Biden interpretation (and that of Congress in 1955, 1958, 1971, and 1994) that the Comstock Act is no longer in force is wrong.
They explicitly assert that the Comstock Act is still in effect and they want it enforced:
“We write to express our support and agreement with 21 [Republican] State Attorneys General,” they wrote “who have reminded you that Federal law in 18 U.S.C. 1461-1462 [the Comstock Act] criminalizes nationwide using the mail, or interstate shipment by any express company or common carrier, to send or receive any drug that is ‘designed, adapted, or intended for producing abortion.’”
The 1930 court ruling that lawmakers and judges had, for over 90 years, believed only applied the Comstock Act to items that were illegal (like child porn), Senator Hide-Smith wrote:
“[D]oes not protect CVS or any other individual or entity from being prosecuted within the five-year statute of limitations for the illegal mailing or interstate shipment of abortion drugs … even for conduct that occurs today.”
Keep in mind, under the plain language of the Comstock Act this could also apply to birth control pills, IUDs, condoms, and other things used to prevent pregnancy. And, of course, pornography and sex toys.
Attorney Erin Hawley went so far as to assert before the Fifth Circuit Court of Appeals that even physicians and pharmacies shouldn’t be able to receive mifepristone or other drugs that could produce an abortion via the mail, FedEx, or UPS:
“What the Comstock law says is that it is improper to mail things that induce or cause abortions, which is precisely the action the FDA took in 2021 when it permitted the mailing of abortion drugs.”
Forget about having the drugs mailed to your house; when even a pharmacy can’t receive them through the mail or UPS/FedEx to resell to you, they will have effectively vanished from the American medical landscape.
If Hawley’s interpretation is ultimately adopted by the Supreme Court in another case more specifically tailored to it next year — which the anti-abortion movement is working on as you’re reading these words — all abortions in the United States would be ended when drugs and suction and surgical devices designed specifically for the procedure can no longer be shipped to hospitals, clinics, or physicians’ offices.
Get ready. The GOP is not backing down one inch on their war against women’s rights and bodily autonomy.
This decision isn’t the end for these people; it’s just the beginning.
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Written by Thom Hartmann. Cross-posted from the Hartmann Report.
