The 151-year-old law bans the mailing of “obscene” or “indecent” materials. It hasn’t been applied in more than a century, and was largely unenforceable while Roe v. Wade was in effect.
But for several years in anticipation of the end of Roe, anti-abortion activists and some GOP officials have been eyeing it as a way for a future Republican president to effectively ban abortion nationwide without needing Congress.
Alito pressed Solicitor General Elizabeth Prelogar about whether the Food and Drug Administration should have at least considered the Comstock law when it allowed mifepristone to be accessed by mail.
“This is a prominent provision; it’s not some obscure subsection of a complicated, obscure law. Everybody in this field knew about it,” Alito said.
Some abortion rights groups and legal experts are expressing concern that while the Biden administration may win if the court rules the Alliance doesn’t have standing to sue, one or both justices could write a Comstock-focused opinion and give legal cover to a future GOP administration.
Both Prelogar and Jessica Ellsworth, the attorney for manufacturer Danco, said Comstock doesn’t apply in this case.
But Erin Hawley, who represented the Alliance for Hippocratic Medicine, said the law’s meaning was “pretty clear.”
“We don’t think that there’s any case of this court that empowers FDA to ignore other federal law,” Hawley said. “The Comstock Act says that drugs should not be mailed either through the mail or through common carriers.”
