The Freedom From Religion Foundation is watching with bated breath — along with the rest of our emphatically pro-choice nation — whether the U.S. Supreme Court will let stand yet another anti-abortion ruling that is holding reproductive rights hostage around the country.
That pending ruling on the legality of a medication abortion pill, mifepristone, and its distribution via mail, could come down as early as today or tonight. The U.S. solicitor general filed an emergency application today asking the judges to stay the ruling late last Friday by a Texas judge banning mifepristone. The case involves dueling decisions by two federal judges: The first one yesterday reaffirmed that the Texas decision does not apply to 17 states; the second one is a terrible ruling by the 5th U.S. Circuit Court of Appeals. Its decision was split, with two Trump-appointed judges voting to reimpose restrictions on the Food and Drug Administration, while the third, appointed by George W. Bush, would have ruled in favor of the FDA’s stay request.
While the 5th Circuit rejected part of the decision by Texas Judge Matthew J. Kacsmaryk, saying the pill could remain available while the lawsuit proceeds through the courts, it did no favors for abortion rights. Instead it blocked the FDA’s actions to allow the pills to be sent through the mails and to be prescribed by nonphysician health care providers. Additionally, the appeals court ruling would overturn the FDA on telehealth, requiring patients to pick up the pills in person and visit a physician three times — an onerous barrier, especially when more than half of abortions today are via medication.
Incredibly, the weapon of choice by the anti-abortion litigators and Christian nationalist judges is the Comstock Act. They are resurrecting the infamous 1873 act that made it illegal to send “obscene, lewd or lascivious,” “immoral” or “indecent” publications or contraceptive or abortifacient devices (dubbed “indecent articles”) through the mail. The federal act deputized Comstock to personally prosecute cases, and he bragged that he was responsible for 4,000 arrests and 15 suicides. The act held up education and distribution of contraceptives for more than half a century, and wasn’t overturned with regard to birth control devices until Margaret Sanger, herself a victim of the Comstock Act, took and won a challenge, United States v. One Package, in 1933.
Unfortunately, Congress never repealed the obsolete act. Now with the medication abortion pill, an abortifacient, on the chopping block, the Comstock Act is at the center of legal wrangling. That’s why Congress needs to act now, irrespective of what the high court rules and how this case proceeds.
Science and evidence are also on the chopping block.
“If courts can overturn drug approvals without regard for science or evidence, or for the complexity required to fully vet the safety and efficacy of new drugs, any medicine is at risk for the same outcome as mifepristone,” hundreds of pharmaceutical officials wrote in their brief earlier this week in support of the FDA.
It’s been a bad week for abortion rights, including passage yesterday of a six-week ban in Florida, where the number of abortions provided has doubled at many clinics since the Dobbs decision overturned Roe v. Wade. As abortion rights fell in state after Southern state, women and other pregnant individuals from nearby states traveled to Florida. Florida has 54 abortion providers, compared to “a handful of providers” in the two remaining states (North and South Carolina) in the Southeast where abortion is still legal. After Dobbs, there were 1,200 abortions a month in Florida, the largest numerical increase of any state. So this ban is utterly disastrous for millions of women throughout the region.
The case is a religiously based and motivated attack on medication abortion by individuals who have no standing to sue. It is beyond bizarre these individuals have been able to create such legal and personal chaos. Now the right to access to medication abortion even in states where abortion remains legal is at the mercy of the unmerciful U.S. Supreme Court, where five of the six extremist judges voting to overturn Roe v. Wade are conservative Catholics, and the sixth was raised in the Catholic religion.
Regardless of what happens tonight or this weekend or as this phony case proceeds, Congress must act to repeal any remaining lawful part of the Comstock Act so that Anthony Comstock cannot reach into the 21st century to deny the essential right to determine if or whether to continue a pregnancy, if or whether to become a mother or parent.