What is the Comstock Act, the 151-year-old law mentioned in SCOTUS abortion pill case?

A unanimous decision from the U.S. Supreme Court on Thursday turned back a bid to curb access to the abortion drug mifepristone, reversing a lower court’s order that would have forced the drug off the market.

Cited by the Alliance for Hippocratic Medicine, the organization that brought the suit against the U.S. Food and Drug Administration, was a 151-year-old law the plaintiffs had hoped would help stop the distribution of the mifepristone.

The Comstock Act of 1873 makes it illegal to use carriers such as the United States Postal Service to mail “obscene” materials. In this case, mifepristone was deemed the obscene material.

The FDA approved the drug in 2000 and in 2023 gave final approval to allow mifepristone — with a prescription — to be obtained through the mail. Mifepristone is often combined with another drug — misoprostol — to induce an abortion.

Medical abortions using the two-drug regime accounted for more than 60% of all abortions in the US last year, according to research from the Guttmacher Institute.

What is the Comstock Act and how could it affect a woman’s access to abortion services? Here’s what we know now:

What is the Comstock Act?

The Comstock Act criminalizes the act of using the U.S. Postal Service to send “obscene” materials such as contraceptives, substances that induce abortion, pornographic content, sex toys and any written material about these items.

What is the history of the act?

Named for Anthony Comstock, head of the New York Society for the Suppression of Vice, the act became law when Comstock decided to go to Congress for help in addressing the morals of New York City.

In 1872, Comstock went to Washington with an anti-obscenity bill, including a ban on contraceptives, that he had drafted himself, NPR reported.

The law, known as the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, was passed on March 3, 1873. Known as the Comstock Act, the statute defined contraceptives as obscene and illicit, making it a federal offense to disseminate birth control through the mail or across state lines.

What did it have to do with the mifepristone case?

Among other points, the Alliance for Hippocratic Medicine argued the FDA’s decision to allow women to get mifepristone via the mail is illegal under the Comstock Act.

Erin Hawley, an attorney who represented the group, argued before the justices, “We don’t think that there’s any case of this court that empowers FDA to ignore other federal law,” he said, referring to the Comstock Act.

“The Comstock Act says that drugs should not be mailed either through the mail or through common carriers. So, we think that the plain text of that, your honor, is pretty clear.”

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