The Comstock Act of 1870 has been revived by anti-abortion groups and states with conservative leaders seeking to block the mailing of mifepristone in the wake of the overturning of Roe v. Wade in the U.S.

The Comstock Act of 1870 prohibited the mailing of contraceptives, “lewd” writings, and any “instrument, substance, drug, medicine, or thing” that could be used in an abortion.

The scope of the Comstock Act has been narrowed by federal courts and Congress over the last century, its reference to contraceptives was removed in the 1970s.U.S. District Judge Matthew Kacsmaryck of Texas, a Trump appointee, sided with an anti-abortion group suing the FDA under the Comstock Act, saying the FDA’s 2000 approval of mifepristone violated federal rules.

More than 5.6 million women in the U.S. have used the drug as of June 2022, with less than one-tenth of 1% of women reporting complications, the FDA said in response to claims by Kacsmaryck that the agency overlooked “legitimate safety concerns” with the pill.

The Comstock Act went dormant in the 50 years after Roe v. Wade established a federal right to abortion. 

Kacsmaryk’s 67-page decision, if found valid, will dismantle recent FDA measures that made mifepristone more accessible in the wake of the overturning of Roe v. Wade, which put abortion laws in the hands of the states.

Kacsmaryk, who has no medical training, used anti-abortion terminology throughout his opinion, referring to doctors who prescribe mifepristone as “abortionists,” fetuses as “unborn humans” and medication abortions as “chemical” abortions.It is unprecedented that a lone federal judge could overturn the U.S. federal agency’s medical decisions.

The FDA in 2021 made a change that allowed the drug to be sent through the mail, the legality of which is now in limbo due to conflicting court rulings. Kacsmaryk’s ruling literally interprets the Comstock Act.  

The complicated case is expected to be taken all the way to the Supreme Court.

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