The Supreme Court has given itself until midnight Friday to make an “emergency” decision on access to mifepristone, a drug used in half of all U.S. abortions. Whatever the outcome, it’s just a preliminary round in the battle over U.S. District Court Judge Matthew Kacsmaryk’s ruling earlier this month to block FDA approval of the drug.
Kacsmaryk’s attack on the abortion pill is chock full of audacious legal assertions. One of its most alarming aspects is its resurrection of the Comstock Act, a 150-year-old law that, if taken to the logical end advanced by anti-abortion forces, would make a federal crime out of every abortion performed in America.
Enacted as part of an anti-vice crusade in 1873, the Comstock Act prohibits, among other things, the mailing or interstate carrying of “every article or thing designed, adapted, or intended for producing abortion.” As Mary Ziegler, a law professor at the University of California, Davis, warned, Kacsmaryk’s Comstock Act interpretation is “explosive” because all such procedures rely “on drugs and devices that might be mailed to clinics, hospitals and doctors offices.”
