After reading the news pertaining to the oral arguments before SCOTUS regarding FDA v. Alliance Hippocratic Medicine, it seems hyperbole abounds.
One writer posited the Alliance Defending Freedom attorneys representing the Alliance Hippocratic Medicine (AHM) doctors “struggled” to explain the harms of mifepristone and that their legal theory was weak and tenuous at best. One could suggest this interpretation borders on misinformation.
Tweet This: It's been said that ADF attorneys “struggled” to explain mifepristone's harms and their legal theory was weak-This borders on misinformation
Juxtaposed to this interpretation is the amicus brief from some 140-plus Members of Congress that clearly explains the inherent risks of taking mifepristone unsupervised.
I have previously written on these risks here and here, and they are not based upon interpretation, rather, upon solid data that has stood the test of time. And they are complications I have personally observed during the course of my career.
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At last Tuesday’s oral arguments both Justices Samuel Alito and Clarence Thomas referenced the Comstock Act. The Comstock Act, first passed by Congress in 1873, forbids the mailing of obscene, lewd, or lascivious, immoral, or indecent publications through the mail, as well as contraceptive or abortive devices.
It is not as if this act lay hidden in The Congressional Record unmolested as the 20th century evolved into the 21st century. In fact, in 1936, the United States Court of Appeals for the Second Circuit ruled in United States v. One Package, that physicians could legally mail birth control devises through the postal service.
And then in 1996, a little over twenty years after the passage of Roe v. Wade, the Comstock Cleanup Act was introduced in the 105th Congress by Massachusetts Congressman Barney Frank with the intent of repealing the ban on transportation or mailing of any material intended to produce an abortion. The proposed legislation failed to receive a vote and was never reintroduced again.
The restrictions imposed by the Comstock Act have certainly been visited and re-visited from time to time throughout the 20th century and well into the 21st century, yet the ban on mailing abortion-inducing materials has persisted.
Comstock Act back in the news
During oral arguments in FDA v. AHM, Justice Thomas asked why mailing abortion drugs would not violate the Comstock Act. He did not pull this question out of thin air or from the pages of an obscure, long-ago forgotten and dusty tome.
Indeed, the original suit prompting the abortion drug showdown came about due to the initial ruling of District Judge Matthew J. Kacsmaryk, of the United States Fifth District Court who ruled on April 7, 2023, that the original approval by the FDA of mifepristone should stand. However, he put on hold the distribution of mifepristone, including distribution by mail. In doing so, he referenced violation of the Comstock Act.
On that same day, District Judge Thomas O. Rice of the United States District Court for the Eastern District of Washington issued a temporary injunction that the FDA should not reduce access to mifepristone. These conflicting rulings are what prompted last Tuesday’s arguments before SCOTUS.
In response to Justice Thomas’ question as to why mailing abortion drugs would not violate the Comstock Act, attorney Jessica Ellsworth, representing Danco Labs (the maker of mifepristone) responded, “This statue has not been enforced for nearly 100 years and I don’t believe that this case presents an opportunity for this court to opine on the reach of the statute.”
You can’t be serious
Are you kidding me? What part of “mail” and United States Postal Service are we not supposed to grasp?
Admittedly, my background is obstetrics and gynecology, not law, but these two professions do share a very common denominator – as do all endeavors – that being common sense.
The fact that the Comstock Act has been alleged to “have not been enforced for nearly 100 years” holds no water. Common sense dictates this is hardly a plausible argument as anyone could opine that perhaps the Comstock Act has simply been followed these past “100 years” rather than ignored due to lack of enforcement.
Did Ellsworth not observe any of the representations of Moses and the Ten Commandments in and around the Supreme Court building? Would she, I wonder, have SCOTUS believe that just because the Mosaic Laws and the Ten Commandments are ancient and seemingly have not been “enforced,” that they, too, don’t need to be followed?
May God help us all.
Editor’s note: Dr. Lloyd Holm is a retired OB/GYN and former President of the Iowa State Board of Health who is currently the Executive Director of Options for Women/River Falls, a pregnancy resource center in western Wisconsin. A previous contributor to Pregnancy Help News, his writings have also appeared in The Federalist, the Omaha World-Herald, Obstetrics and Gynecology, the American Journal of Obstetrics and Gynecology, Iowa Medicine, The Female Patient, and the on-line networking platform for medical professionals Doximity.
