by Ken MacVey
The Heritage Foundation in its Project 2025 volume—a 900-page blueprint for a right-wing take-over of America—urged that the Comstock Act of 1873 be enforced to ban mifepristone, the so-called abortion pill. Justice Clarence Thomas last month ended up championing the Heritage Foundation’s cause.
On May 1st, the Fifth Circuit US Court of Appeals issued a nation-wide preliminary injunction against FDA regulations that allowed physician prescriptions and mail delivery of mifepristone without requiring in-person consultation. The state of Louisiana, which has a strict ban on abortion, brought a lawsuit challenging the FDA regulations. A federal district court judge initially agreed with Louisiana that it had standing to sue, and that on the legal merits the FDA regulations probably had not been approved as required by the federal Administrative Procedures Act. But the district court declined to issue an injunction that would have prohibited telehealth and mail delivery prescriptions of the pill because the FDA prior to the lawsuit was already conducting administrative review of the regulations and an injunction could derail that review.
Unhappy with this outcome, Louisiana went to the Fifth Circuit Court of Appeals. The Fifth Circuit confirmed Louisiana had standing but it overruled the district court on the injunction issue. The Fifth Circuit issued a nation-wide injunction prohibiting telehealth and mail delivered prescriptions of the pill. In doing so, the Fifth Circuit held that the recent Supreme Court’s decree prohibiting lower courts from issuing nation-wide injunctions didn’t apply. Although the decision found Louisiana had demonstrated legal standing based on its specific claims of injury, the Fifth Circuit did not confine the injunction to Louisiana where these injuries purportedly occurred or to the geographic boundaries of the Fifth Circuit. It was widely recognized that the injunction could generate chaos and disrupt the medical community and women healthcare throughout the country.
On May 14, per an emergency application by mifepristone manufacturers, the US Supreme Court blocked the Fifth Circuit’s injunction for the duration of appellate review, which included pending Fifth Circuit review on the legal merits and potential Supreme Court review. The practical effect was to assure status quo access to the pill at least through most of 2026 and maybe longer.
Justice Thomas dissented and pronounced the Fifth Circuit injunction should be upheld–not because of the Administrative Procedures Act but because of the Comstock Act, which hadn’t been invoked in the Louisiana court decisions. The Comstock Act originally made it a crime to use the US mails or common carriers to send or receive “obscene” materials and contraceptive and abortion drugs and devices. But because of Supreme Court constitutional decisions addressing obscenity, contraception, and abortion over several decades, the Comstock Act had become practically a dead letter. It became what many call a “zombie” law—one on the books but not enforced or followed.
That’s where the Heritage Foundation comes in. In anticipation of Trump or a Republican conservative winning the 2024 election, Project 2025 targeted mifepristone, which may be the major means of abortion in the US. It specifically called for enforcement of the Comstock Act to go after the dissemination of mifepristone on the premise that the Dobbs decision brought the Comstock Act back to life. The Comstock Act prohibits the use of US mails and “common carriers” to disseminate “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.” The phrase “common carriers” as defined under law refers to a commercial transporter of passengers or goods that offers its services to the general public for a fee.
The Comstock Act’s ban on contraceptive materials was repealed by Congress in 1971 six years after the Supreme Court ruled in Griswold v. Connecticut that married couples had a constitutional right to use contraception. The Comstock Act’s ban on “obscene” materials remains in place but, with the exception of child pornography, has not been enforced for decades because of Supreme Court First Amendment decisions making it extremely difficult to prosecute obscenity cases. After the1973 Roe v. Wade decision, portions of the Comstock Act on abortion practically became a dead letter. But unlike its response to Griswold v. Connecticut, Congress never repealed the Comstock Act’s abortion provisions. These provisions remained on the books throughout the 50-year life of the Roe decision but were unenforceable because of Roe. The legislative history suggests Congress did not enact any further clean-up of the Comstock Act regarding abortion because it was considered unnecessary in light of Roe v. Wade.
After the Dobbs decision overturned Roe, the Biden Department of Justice published a lengthy legal opinion that the Comstock Act still did not preclude mifepristone distribution as authorized by existing FDA regulations, which allows prescribing the drug for pregnancies of up to ten weeks. Relying on decades old judicial precedent interpreting the Comstock Act, the opinion concluded the Comstock Act could only target unlawful abortions. There are several states where abortion or the use of the pill would not be unlawful. If the sender did not know that the user was going to use mifepristone unlawfully, the sender could not criminally violate the Comstock Act. The Trump Administration to date has not countermanded this opinion despite right-wing attack on its legal merits and impact.
Justice Thomas’s dissent invoking the Comstock Act–which makes no mention of the Department of Justice legal opinion– is a not-so-subtle dog whistle to not only resurrect the Comstock Act but also to go after drug companies and retailers under RICO (the Racketeer Influenced and Corrupt Organizations Act). In his dissent Thomas asserts that the Comstock Act makes it a felony to use “express carriers and other common carriers” to transport drugs that produce or procure abortion. He further cites FDA regulations that require mifepristone to be shipped by “a shipping service” to certified pharmacies. He concludes the mifepristone manufacturers are not legally entitled to judicial relief that would allow them to continue to reap profits from “ their criminal enterprise.” This alleged criminality rests on the Comstock Act.
The reference to “criminal enterprise” is code for the RICO Act. “Enterprises” under RICO are subject to criminal prosecution and treble civil damages (for every dollar of actual damages three dollars must be paid out). These enterprises are identified by engaging in a pattern of predicate criminal acts in violation of specific statutes listed in RICO. Without specifically citing RICO, Thomas nevertheless laid out a legal framework for accusing mifepristone manufacturers and retailers of operating criminal enterprises in violation of RICO based on alleged violations of the Comstock Act.
This framework faces a number of legal problems. One problem is the Comstock Act does not absolutely ban the dissemination of any drug, medicine “or thing” intended to procure or produce an abortion.” It prohibits the sending and the receipt of these materials by US mail or by what are legally called common carriers. If the pills were, for example, to be distributed by Amazon’s Prime delivery trucking system (which they are not–this is a hypothetical) such distribution might not violate the Comstock Act. Amazon’s delivery system should not legally count as a common carrier because Amazon does not offer shipping services to the public at large for a fee. But even if such or similar delivery by others were found to constitute a “common carrier,” manufacturers could still develop their own private transport systems that under any legal interpretation could never be considered a common carrier. It might be very expensive to set up their own systems, but legally it could be done. And in fact there are various manufacturers that transport their own products.
Thomas was probably aware of this distinction, which may be why he brought up the FDA regulations that require mifepristone to be shipped by a shipping service, that is a common carrier, to certified pharmacies. This way the common carrier element of Comstock Act can be said to be triggered. Because these regulations require manufacturers of mifepristone to use common carriers to transport their product, they inexorably would have to violate the Comstock Act.
This “gotcha” Catch-22 legalism is clever by half. It means that by complying with a legal mandate the manufacturers necessarily will commit a crime. But the very idea that by complying with the law you thereby violate the law is not only a legal contradiction, it is a perversity that flies in the face of any understanding of what due process of law means.
There is also a separate problem with the RICO violation theory. In 2023, 20 right-wing state attorney generals sent letters to Walgreens and CVS warning them that that any dealing in mifepristone could result in state attorney generals and others going after them under RICO. RICO does cite violations of the Comstock Act as predicate criminal acts for establishing a RICO violation. But what these state attorney generals missed is that the citation in RICO to the Comstock Act explicitly limits the citation to “obscene matter” and says nothing about abortion. Nevertheless, fueled by Thomas’ dissent, it would not be surprising if RICO lawsuits are launched against manufacturers and retailers of mifepristone.
Not a legal but a practical political problem is that these legal theories fly in the face of one of the commonly promoted rationales of the Dobbs decision—namely, that regulation of abortion should be left to the states, not the federal government. But lo and behold, it turns out an abortion ban was already in placeunder federal statute, quietly awaiting revival once Roe was overturned. Such a sneaky bait-and-switch won’t sit well with many, especially given the fact polls show a majority of Americans already disapprove of the Dobbs decision.
What’s the next chapter in the horror story “Revenge of the Zombie Comstock Act?” Who knows, maybe have the feds, state attorney generals, and others go after “obscene material” targeted by the Heritage Foundation and fellow travelers. The Comstock Act and its namesake Anthony Comstock inspired the word “Comstockery,” a derogatory term for fanatical “morals” policing. With the assistance of the Heritage Foundation, Justice Thomas, and others, this word may gain renewed notoriety.