The fate of mifepristone, a drug used in more than half of abortions in the United States, will now be decided by the same conservative justices who reversed Roe v. Wade, ending Americans’ right to legal abortion after nearly half a century of access. In its ruling on the mifepristone case last week, the 5th Circuit offered the Supreme Court an outline for a faux compromise: the divided three-justice panel did not revoke the original approval of mifepristone as Judge Matthew Kacsmaryk had (though the appeals court seemed open to doing so at a later stage of the litigation). Instead, the 5th Circuit proposed bringing back all kinds of limits and restrictions on the drug that haven’t been in effect since 2016: limiting its use to the first seven weeks of pregnancy (instead of 10 weeks) and requiring three in-person doctor visits instead of a telehealth consultation.
The kicker, though, was the 5th Circuit’s deployment of the Comstock Act, the 19th-century anti-vice law that has quickly become a centerpiece of anti-abortion attacks. While the court didn’t reach a definitive conclusion, it hinted that the Comstock Act makes it a crime to mail every drug or device intended or adapted for abortion.
The mifepristone case will reveal the true commitments of the conservative Supreme Court justices who reversed Roe in Dobbs v. Jackson Women’s Health Services. In that decision, the conservative justices claimed to be returning the abortion issue to the people, but was their talk of democracy just an excuse for supporting abortion bans? Will they now go further than Dobbs’ cherry-picked history by reviving Victorian laws that women had no voice in enacting in order to continue restricting abortion access?
Last summer in Dobbs v. Jackson Women’s Health Services, the court claimed that overturning Roe and Planned Parenthood v. Casey would “heed the Constitution and return the issue of abortion to the people’s elected representatives.” But before the mifepristone litigation began, we already knew that Dobbs’ claimed commitment to democracy was merely a fig leaf barely concealing this court’s hostility to abortion.
Democracy requires more than voting. As the court’s conservatives explain in cases involving armed self-defense, religious liberty, and speech, constitutional democracies must protect the basic rights of those who participate in public debate in order to ensure that voting is free and fair. Few Americans would call a majority vote “democratic” if the government excluded disfavored groups of citizens from voting, imposed restrictions on speech, or denied citizens an equal opportunity to participate. Keeping this in mind, we can see that Roe and cases protecting liberties of intimate and family life are “democracy-reinforcing”: These constitutional rights supported the democratic participation of groups long excluded from public life by the traditional organization of the family.
In overturning Roe in the name of “democracy,” the Dobbs court was applying a constitutional double standard: reasoning about women’s rights as it would never reason about the rights that conservatives prefer. Dobbs’ commitment to democracy is thin at best—to take just one example, the Dobbs court talked about returning “abortion to the people’s elected representatives” without mention of women’s continuing underrepresentation in legislatures or the nation’s traditions of resistance to mothers and pregnant people serving as political leaders.
If the justices in the Dobbs majority want to demonstrate that they are serious about “returning the issue of abortion to the people’s elected representatives,” they need to reverse the Kacsmaryk ruling and the 5th Circuit’s order—not only the unprecedented decision to overturn a decades-old FDA decision but also, just as importantly, any claimed justification found in the anti-abortion provisions of the Comstock Act of 1873. The interpretation of Comstock on which Kacsmaryk and the 5th Circuit rely has been rejected by federal courts for generations, and sets a standard that American voters would never support today. For a court to suddenly endorse this long-rejected view does not leave abortion law “to the people.” It instead resurrects archaic understandings of a law passed at a time when women were denied the right to vote and reflects attitudes about women that supported that exclusion.
In 1873, the year Comstock was enacted, the Supreme Court declared it constitutional for states to prohibit women from serving as lawyers; the next year, it ruled that it was constitutional for states to prohibit women from voting. In this era, a woman who consented to marriage was deemed by law to consent to sex with her husband anytime, in any circumstance. Legal authorities of the era assumed that women existed to bear children and that the law should enforce that role. The Comstock statute banned the mailing of materials related to abortion and to contraception, imposing one of the earliest bans on birth control. The Comstock law was not simply anti-sex—it opposed information and articles enabling nonprocreative sex as “immoral.” When a minister protested Comstock’s prosecution of contraception, claiming in a letter to the New York Times that “there ought to be laws … to guard the mothers from burdens that prevent them from caring for children that they have,” Anthony Comstock attacked him as “crazy, stupidly ignorant, a very bad man at heart.”
Comstockian beliefs are increasingly visible in some parts of today’s anti-abortion movement. Powerful figures within the movement equate most contraceptives, including the birth control pill, with abortion, or argue that contraceptives increase the risk of cancer or other medical harms. (They do not.) Further, these groups and individuals tend to view nonprocreative sex as a threat to women’s health. These views are not shared by the majority of Americans who would not support a law banning access to abortion and birth control today.
Conservative claims on Comstock reach beyond the mifepristone case. The architects of Texas’s S.B. 8, the notorious bounty bill, are now seeking to revive Comstock because their interpretation of the long-abandoned statute would provide the modern movement what democracy never could: a national, no-exceptions ban on abortion, one so broad that it could sweep in a range of other drugs, including emergency contraceptives and many other medicines counterindicated for pregnancy.
It doesn’t even end there. Since the 1960s, the gold standard for the anti-abortion movement has been the recognition of constitutional fetal rights—something that, advocates claim, would lead to a nationwide ban on abortion. Even this Supreme Court doesn’t seem ready for that—the justices just turned down a fetal personhood case from Rhode Island. And voters aren’t interested either. To the contrary: Since 2022, the abortion issue has hurt Republicans in contested congressional and state judicial races and led to a string of victories in abortion ballot initiatives for those who support reproductive rights. Polling shows that after Dobbs, there is broad-based support for abortion rights, even among Republicans. Six in ten voters support legal abortion in most cases; just over a third want it to be entirely or mostly illegal.
That, for the anti-abortion movement, is the beauty of the Comstock Act: No one has to pass anything. Voters don’t need to agree. All that is needed is a group of federal judges willing to revive the interpretation of Comstock that prevailed during the era before women were granted the vote and constitutional rights of equal citizenship. All that is needed, in other words, is for them to ignore equality under the law and the will of Americans today.
We do not believe that the justices in the Dobbs majority are committed to returning “the authority to regulate abortion to the people.” But with the meaning of Comstock and the fate of mifepristone on the line, now is the perfect chance for some of those justices to prove us wrong.
