The Toxic GOP Plan to Ensure their Ownership of Women’s Bodies

Anthony Comstock's fingers are about to reach up out of the grave & with the help of Alito, Coney Barrett, and Thomas, wrap themselves around the necks of every American woman of childbearing years...

Image by Sam from Pixabay

The saga of Kate Cox in Texas is making it clear to every American that GOP opposition to abortion isn’t just about abortion: it’s ultimately about controlling every aspect of women’s bodies and lives.

When the Supreme Court agreed yesterday to hear arguments in the Texas case where a rightwing judge tried to nationally outlaw the abortion drug mifepristone, it was greeted by most in the media and among the political class with a big yawn. Some even suggested it was a good thing, because it would finally settle the issue.

But there’s a grenade buried in the lawsuit that’s now before the Court (two of them, actually) that could go off in all our faces and hand the GOP the final, total control over women’s bodies that they’ve been seeking ever since Reagan changed the party’s policy to oppose women’s rights generally (opposing the Equal Rights Amendment) and the right to abortion specifically.

The first grenade is the slim possibility that the Republicans on the Court will use this opportunity to gut the Chevron Deference, which I’ve written about at length here and here, and would begin the end of the regulatory state in America. It’s unlikely, as they denied a petition in this case about the FDA that would have been tailor-made for such a decision, but with this Court anything is possible.

The more immediate threat, however, is a 150-year-old law that the GOP is trying its best to revive.

Texas rightwing Judge Matthew Kaczmarek based a good part of his decision on the Comstock Act, a law that’s still on the books.

That Act is the largest grenade, and one that America should educate itself about now, because if the Act is upheld by the Court — and I see no reason why they wouldn’t; it’s still law and only once been challenged or taken down (it’s just not enforced) — it could bring America 100% into alignment with the Catholic Church’s view that both abortion and every imaginable form of birth control must be banned.

Women’s bodies could fully become the property of the state, nationwide, at least as long as they’re of childbearing years.

As New York magazine almost casually noted in an article about SCOTUS picking up the Texas mifepristone case:

“The lawsuit also argues that mailing abortion pills is illegal under a federal criminal statute that was originally part of the anti-obscenity Comstock Act, which dates back to 1873 — and which banned contraception well before women even won the right to vote. (The Department of Justice disagrees with the plaintiffs’ interpretation.)”

Yes, “contraception.” As in, “banning the shipment of birth control pills, condoms, IUDs, or other related devices anywhere in the US.”

So, what’s the Comstock Act and where did it come from?

You’ve probably never heard of Anthony Comstock, a Civil War Union soldier and New York Postmaster, who died in 1915. You need to learn about him and his legacy, however, as his long fingers are about to reach up out of the grave and, with the help of Sam Alito, Amy Coney Barrett, and Clarence Thomas, wrap themselves around the necks of every American woman of childbearing years.  

Anthony Comstock was a mama’s boy who hated sex. His mother died when he was 10 years old and the shock apparently never left him; women who didn’t live up to her ideal were his open and declared enemies, as were pornography, masturbation, and abortion. He was so ignorant of sex and reproduction that he believed a visible human-like fetus developed “within seconds” of sexual intercourse.

Comstock spent decades scouring the country collecting hardcore pornography, which he enthusiastically shared with men in Congress, and harassing “loose women.” For example, when he visited a belly-dancing show (then a new craze) in Chicago at the Cairo Theatre during the World’s Fair of 1893, he demanded the show be shut down.

As Amy Sohn, who wrote a brilliant Comstock biography titled The Man Who Hated Women, noted:

“Despite national controversy and Comstock’s intervention, ultimately the only alteration made to the fair’s belly dancing was costuming: the dancers swapped their gauze blouses for thin woolen undershirts. The vice hunter had lost in Chicago. But he would not forget the dancers, and would have four of them arrested and fined when they came to New York that winter. New York, after all, was Comstockland.”

Comstock lobbied for and shepherded through Congress a law passed on March 3, 1873 titled “An Act for the Suppression of Trade in, and Circulation of, obscene Literature and Articles of immoral Use.” Today we refer to it as the Comstock Act.

It’s language with regard to abortion is not at all ambiguous:

“Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance … designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

“Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

“Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

“Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

“Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

“Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” (emphasis mine)

The penalty is also not ambiguous. Persons mailing information about abortion, or drugs or devices to produce an abortion, or “for any indecent or immoral use”:

“[S]hall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.” (emphasis mine)

The Biden administration argues that the Comstock Act of 1873 was set aside almost a century ago.

And, indeed, in 1930, the Appeals Court for the Second Circuit ruled in Youngs Rubber Corp. v. C.I. Lee & Co that the law couldn’t apply to things for abortion or birth control sent through the mail that are legal, even if they were illegal at the time of the passage of the Comstock Act. (The case involved condoms manufactured by Young’s Rubber.)

“Such a construction,” the court wrote, “would prevent mailing to or by a physician of any drug or mechanical device ‘adapted’ for contraceptive or abortifacient uses, although the physician desired to use or to prescribe it for proper medical purposes.”

But that was not the Supreme Court, which has never weighed in, at least not yet. So the issue is not finally settled.

The law has been amended by Congress four times (in 1955, 1958, 1971, and 1994), but the language above was never struck because legislators figured the appeals court’s ruling rendered it nugatory.  

But don’t tell that to Trump’s appointee Texas District Judge Matthew Kacsmaryk of Amarillo, who based a large part of his mifepristone decision on the plain language of the Comstock Act.

And don’t tell it to the three rightwing judges who heard the appeal of Kacsmaryk’s decision before the Fifth Circuit Court of Appeals. In their ruling, they mentioned the Comstock Act — favorably — 27 times.

During the appeal’s oral arguments, when the Biden administration’s attorney argued that Kacsmaryk’s decision was “unprecedented,” Circuit Judge James Ho — also a Trump appointee, who personally swore his good friend Kacsmaryk into his office — interrupted her with a curt snap, saying:

“I guess I’m just wondering why not just focus on the facts of this case rather than have this sort of ‘FDA can do no wrong’ theme.”

The appeals court, made up of a George W. Bush appointee and two Trump appointees, earlier had ruled in their preliminary finding to hear the case that they disagreed with the Biden administration’s assertion that, to quote the three judges, “the [Comstock] law does not mean what it says it means.”

When the Biden interpretation of the Comstock Act was brought up in oral arguments, the Bush appointee, Judge Jennifer Walker Elrod, said there is “some disagreement” about whether previous court rulings actually invalidated the law.

In their ruling this summer, which the Supreme Court announced yesterday they’d evaluate this session, the Appeals Court ruled that the Comstock Act was still in force, and, further, that Congress had updated it in 1897 to include “any express company or common carrier” as being prohibited from transporting birth control products.

In other words, if SCOTUS upholds the Fifth Circuit’s ruling and the Comstock Act, you — and your pharmacist, doctor, and local drug store — won’t be able to get any abortion products (including mifepristone) via the mail, FedEx, UPS, or any other means, and quite possibly any birth control products, either.

Additionally, the Fifth Circuit’s opinions include:

“In 1996, Congress added ‘interactive computer service’ to the Comstock Act. See Telecommunications Act of 1996, Pub. L. No. 104-104, § 507(a), 110 Stat. 56, 137. So it’s also illegal to use the internet to ship or receive abortifacients. See 18 U.S.C. § 230(f)(2) (defining ‘interactive computer service’); id. § 230(f)(3) (‘interactive computer service’ includes ‘the Internet’); Doe v. MySpace, Inc., 528 F.3d 413, 415 (5th Cir. 2008) (‘interactive computer service’ includes ‘a Web site’).

“The FDA’s 2021 Mail-Order Decision violates the Comstock Act. That decision authorizes the dispensing of mifepristone ‘through the mail . . . or through a mail-order pharmacy.’ FDA Letter to American College of Obstetricians and Gynecologists at 2 (Apr. 12, 2021). But ‘us[ing] the mails for the mailing’ of a ‘drug . . . for producing abortion’ is precisely what the Comstock Act prohibits. 18 U.S.C. § 1461.” [emphasis added]

Republican members of Congress agree, and want the Comstock Act enforced nationwide.

In a letter sent to CVS (among other pharmacy chains), Mississippi Republican Senator Cindy Hyde-Smith and eight other Republican senators (Lankford, Daines, Braun, Rubio, Marshall, Risch, Crapo and Blackburn) wrote that the Biden interpretation (and that of Congress in 1955, 1958, 1971, and 1994) of the legitimacy of the Comstock Act is wrong.

“We write to express our support and agreement with 21 State Attorneys General,” they wrote “who have reminded you that Federal law in 18 U.S.C. 1461-1462 [the Comstock Act] criminalizes nationwide using the mail, or interstate shipment by any express company or common carrier, to send or receive any drug that is ‘designed, adapted, or intended for producing abortion.’”

The 1930 court ruling that lawmakers and judges had, for over 90 years, believed only applied the Comstock Act to items that were illegal (like child porn), she wrote:

“[D]oes not protect CVS or any other individual or entity from being prosecuted within the five-year statute of limitations for the illegal mailing or interstate shipment of abortion drugs … even for conduct that occurs today.”

The lawyer for Republicans defending Kacsmaryk’s ruling before the Fifth Circuit, Erin Hawley (the wife of Missouri Republican Senator Josh Hawley), went so far as to assert before the court that even physicians and pharmacies shouldn’t be able to receive mifepristone or other drugs that could produce an abortion via the mail, FedEx, or UPS:

“What the Comstock law says is that it is improper to mail things that induce or cause abortions, which is precisely the action the FDA took in 2021 when it permitted the mailing of abortion drugs.”

If Hawley’s interpretation is ultimately adopted by the Supreme Court, all abortions in the United States would be ended when drugs and suction and surgical devices designed specifically for the procedure can no longer be shipped to hospitals, clinics, or physicians’ offices.

And this is no idle threat.

As Washington Post reporter Dan Diamond wrote for his Substack newsletter, anti-abortion activist Mark Lee Dickson, who’s helped several cities around the country put into law local versions of the Comstock Act, told him:

“If a future president were to enforce these federal statutes, then they could shut down every abortion facility in America.”

And if the six Catholic Republican justices on the court want to bring the Comstock Act back to its original intent — which has been used and upheld in the past — they could even assert (as courts did for half a century) that birth control for use in sex outside marriage constitutes an “indecent or immoral purpose” and ban the shipment of everything from condoms to the pill to IUDs.

The GOP ownership of the bodies of every woman in America of childbearing age — a project that dates back to Reagan’s getting into bed with Falwell’s corrupt Moral Majority in the 1980s — would then be complete.

If the Supreme Court rules in favor of Kaczmarek’s original decision, the only solution will be for Congress to overturn the Comstock Act itself. And that’s unlikely to happen unless or until Democrats can take back the House, hold the White House, and gain a filibuster-proof majority in the Senate.

The decision could come down as late as next June, so we have some time to get ready.

The stakes couldn’t be higher and we need to not only pay attention to these behind-the-scenes actions but also prepare for the worst by developing both political and legislative strategies now for the possibility of an adverse ruling and the impact it could have on next year’s election.

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PS . Dahlia Lithwick and Mark Joseph Stern are writing about this over at Slate, too. Here’s the opening paragraph of an excellent article:

“The Supreme Court agreed on Wednesday to consider a challenge to access to mifepristone, the first drug used in medication abortion, teeing up the most important dispute over reproductive rights since Roe v. Wade’s reversal in June of 2022. Based on the narrow scope of the issue the court ultimately agreed to hear, there is good reason to believe that a majority of justices will quash the case by deciding that the plaintiffs had no business suing in the first place. Such a decision, which will come down months before the 2024 election, will probably be hailed as proof of the high court’s sober moderation. It will, in reality, prove no such thing. Rather, that outcome would leave the smoking wreckage of abortion access post-Dobbs intact, while pushing off, for now, its most unhinged expansion by a court below. More dramatically, such a move would leave open the possibility that a future Republican president could ban abortion nationwide without enacting a single new law by exploiting the puritanical Comstock Act of 1873. If, while protecting access to medication abortion, SCOTUS opts to keep this loaded gun on the table, then the legality of abortion in all 50 states will very much be on the ballot next year.” [bold type mine]