The far-reaching consequences for women of misapplying the Comstock Act.
By Sabrina Talukder, J.D.
Litigator and Public Policy Director
Lawyers’ Committee for Civil Rights Under Law
Introduction
In Project 2025, an authoritarian playbook from the Heritage Foundation, far-right extremists have outlined a plan to curtail the decision-making power of pregnant women, patients, and medical providers. The plan, a continuation of far-right lawmakers’ efforts to politicize medicine, is a calculated effort to exert total control over reproductive freedom in America. The consequences of extremists succeeding would extend far beyond individual patients, exacerbating the already dismal state of maternal care in the United States.
Far-right extremists have already captured the U.S. Supreme Court and worsened dysfunction in a polarized Congress. Now, they have set their sights on usurping independent agencies such as the U.S. Department of Justice and the Food and Drug Administration (FDA) to eradicate abortion access. If they succeed, the far-reaching consequences will be detrimental to women, families, and providers and fuel the politicization of medicine in the United States:
• More women will die. Without a mail option for medication abortion, the steep logistical and financial burdens of traveling for abortion access will exacerbate the maternal mortality and morbidity crisis in the United States, particularly for women of color.
• Fearing criminalization, providers will be forced to deny care to patients. An even broader array of medical providers will be in the untenable position of providing care or facing potential jail time, which will lead to delay—if not outright denial— of maternity care.
• Maternity care deserts will proliferate. The criminalization of medical providers will lead to an even greater shortage of maternity care professionals and resources, eradicating access to basic and vital maternity care for entire families and communities.
• Politics—not science—will regulate drug safety determinations. By weakening the independence of the FDA to advance their personal ideology, far-right extremists will fuel the politicization of medicine to the detriment of the well-being of every patient in America.
How Project 2025 Plans to Misapply Comstock
Although the term “Comstock” is not directly used in Project 2025, it is referenced by statute on p. 594 of Project 2025’s Mandate for Leadership:
Announcing a Campaign to Enforce Criminal Prohibitions in 18 U.S. Code §§ 1461 and 1462 Against Providers and Distributors of Abortion Pills That Use the Mail. Federal law prohibits mailing “[e]very 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.” Following the Supreme Court’s decision in Dobbs, there is now no federal prohibition on the enforcement of this statute. The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills.
The Comstock Act commonly refers to a set of two anti-obscenity laws that are officially codified as 18 U.S.C. 1461 and 1462, with the U.S. Postal Service charged with its enforcement. Notably, Comstock has never been used to prosecute the mailing of abortion-related materials. Even though decades of judicial, congressional, and agency interpretation have reduced Comstock to an unenforceable relic, ultimately, far-right extremists plan to avoid the legislative process entirely and misapply the law to criminalize the mailing of items related to abortion in the mail.
Worsening Maternal Mortality and Morbidity
Medication abortion is a two-step regimen for early abortion care and comprises two medicines that are approved by the FDA, to be taken through the first 10 weeks of pregnancy (or 70 days gestation). For many women, the choice for abortion care is between medication abortion that can be mailed and “none at all.” Reliance on medication abortion via telehealth and mail has only surged since the Dobbs v. Jackson Women’s Health Organization decision eliminated the constitutional right to an abortion, and it has prevented the abortion access crisis from worsening. Notably, the number of abortions overall has actually increased since the Dobbs decision, in part because the FDA’s lifting of the in-person dispensing requirement for medication abortion removed significant barriers to access. Far-right extremists are focused on misapplying Comstock to halt medication abortion via mail because doing so would cut off abortion access so severely as to function as a de facto ban.
The United States is experiencing a maternal health crisis: It has one of the highest maternal mortality rates among high-income nations, an increasing rate of complications from pregnancy or childbirth, a skyrocketing rate of severe maternal morbidity, and persistent racial disparities in outcomes. The maternal mortality rate is the number of pregnancy-related deaths for every 100,000 live births. And although an average of 700 pregnancy-related deaths occur each year, 80 percent are considered to be preventable. Notably, Black women and birthing individuals are three times more likely to die from pregnancy than their white counterparts.
Without a mailing option for medication abortion, the steep logistical and financial burdens of travel will put abortion care out of reach for many patients, particularly women with child care obligations—the majority of those who seek abortion care are mothers—and inadequate paid leave.
Additionally, a lack of a mailing option for medication abortion is especially detrimental to women of color, as they are far more likely to have abortions compared with white women, for a plethora of reasons. Rolling back access to medication abortion would worsen preexisting health care disparities driven by poverty, employment, medical racism, immigration status, and a history of reproductive coercion for women of color, to create insurmountable barriers to care. For Black women in particular, lack of access to a mailing option for medication abortion would not simply add to already disproportionately worse health outcomes—it would irrefutably compound these impacts.
And more women are likely to die or needlessly suffer grave health consequences because of the potential misapplication of Comstock. Restrictive abortion policy has a well-documented relationship to maternal mortality and morbidity. One study found that under a nationwide total abortion ban, there could be a 24 percent increase in expected maternal deaths nationwide, with Black women projected to experience a 39 percent increase.
The damage of misapplying Comstock would also extend to women with desired pregnancies. Mifepristone and misoprostol can be used for miscarriage management or ectopic pregnancies, and if care is withheld or delayed because of medical providers’ fear of criminal liability in states, maternal mortality and morbidity are likely to rise. Given that Black women are more likely to be diagnosed with ectopic pregnancies than white women, and 6.8 times more likely to die from an ectopic pregnancy, a delay or denial in accessing medication abortion will have a disparate impact.
Criminalization of Providers Leads to Delay and Denial of Care
Dobbs ushered in waves of mass chaos and confusion for medical providers and patients, which in turn has led to delays—if not outright denials—of necessary and lifesaving medical care in states with and without abortion bans. For the past two years, medical providers have detailed the paralyzing fear of choosing between their medical judgment and losing their professional licensing or facing jail time, with their patients bearing the long-term health consequences of not receiving timely care. Providers’ fear of criminalization is so severe that entire maternity wards have shut down, citing the post-Dobbs political climate, thereby creating rural health care deserts.
Similarly, if Comstock is misapplied and effectuated, providers will find themselves in another complex web of legal and medical chaos on top of ongoing post-Dobbs confusion. The text of both Comstock and Project 2025 is vague and sweeping yet does not specify at what point in the process of prescribing and distributing the DOJ can bring federal charges. This ambiguity would cast a long shadow of legal uncertainty over what medical providers can and cannot do. Therefore, even if patients had the education and resources to overcome the steep logistical and financial burdens to travel, they might still be denied access to medication abortion due to the provider’s legitimate fear of legal retaliation.
Harder to Retain Maternal Health Professionals
Given that misapplying Comstock would add another layer of federal criminality on top of preexisting state-based criminal and civil charges for providing abortion care, it is likely that the detrimental post-Dobbs impact on recruiting and retaining medical professionals in states with abortion bans will only get worse.
In the aftermath of Dobbs, there has been a simultaneous exodus of OB-GYNs and maternal-fetal care specialists and a drop in the number of applicants for OB-GYN residencies in states with abortion bans. For example, the American Medical Association found that during the 2023–2024 cycle for medical residency programs, the number of applicants to OB-GYN programs in states with abortion bans dropped by 6.7 percent, compared with a 0.4 percent increase in states where abortion remains legal. For internal medicine, the drop in residency applications in abortion ban states was more than five times as much as in states where abortion is legal. Moreover, if Comstock is misapplied, even more qualified clinicians can be targeted for persecution. Currently, pharmacists, advanced nurse practitioners, and physician assistants can prescribe medication abortion
A shortage of maternity care professionals and resources could mean even more limited access to birthing services as well as greater difficulty accessing early and continuous prenatal and postnatal care. Now, states with abortion bans are more likely to be maternity care deserts and to rank lower on health system performance based on metrics that include the rate of premature death, access to health insurance, and access to health care providers.
Drug Access Based on Politics
The consequences of misapplying Comstock to effectuate a backdoor ban on abortion would reach far beyond women and pregnant people. In order to criminalize the mailing of medication abortion, far-right extremists would have to override multiple decisions made by the FDA on the availability and use of medication abortion, which will only intensify the growing politicization of medicine. The FDA is an independent regulatory body that is responsible for implementing a rigorous scientific review of the safety, efficacy, and security of drugs, medical devices, biological products, and more. Overriding and interfering with the FDA’s safety determinations—particularly over the objection of the nation’s leading medical experts—would amount to a dangerous invitation for extremists to continue meddling further in medicine.
Conclusion
The Project 2025 plan for Comstock makes it clear that far-right extremists are willing to override and bypass the democratic norms of checks and balances to achieve their goal of a national abortion ban by any means necessary, at the expense of the health and lives of every patient in America.
Originally published by The Center for American Progress, 06.17.2024, republished with permission educational, for non-commercial purposes.
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