#Bours v. United States

[justinspoliticalcorner]

Ian Millhiser at Vox:

Donald Trump is speaking out of both sides of his mouth on abortion. On the one hand, Trump frequently claims credit for the Supreme Court’s decision eliminating the constitutional right to an abortion — and well he should, since the three Republicans he appointed to the Supreme Court all joined the Court’s 2022 decision permitting abortion bans. As Trump told Fox News last summer, “I did something that no one thought was possible. I got rid of Roe v. Wade.” At the same time, Trump at least claims that he has no interest in signing new federal legislation banning abortion. When a reporter asked Trump if he would sign such a ban last month, Trump’s answer was an explicit “no.”

Behind the scenes, however, many of Trump’s closest allies tout a plan to ban abortion in all 50 states that doesn’t require any new federal legislation whatsoever. The linchpin of this plan is the Comstock Act, a long-defunct, 1873 law that, among other things, purports to ban “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion” from being mailed or otherwise transported by an “express company” such as UPS or FedEx. Anyone who violates this law faces up to five years in prison — and the maximum sentence doubles for repeat offenders. Thus, anyone who delivers an abortion medication, or any device used in a surgical abortion, could potentially face such extraordinary sanctions that the transit of such goods would shut down. Many of the leading proponents of using Comstock to ban all abortions, moreover, are likely to be very influential within a second Trump administration, if such a thing occurs. The Heritage Foundation’s Project 2025, for example, touts enforcing Comstock to ban abortion medication in its 920-page mega-white paper outlining policies for Trump. 

Similarly, Jonathan Mitchell, one of Trump’s personal lawyers and the architect of a Texas law that allows virtually anyone to collect bounties from abortion providers, bragged to the New York Times that “we don’t need a federal ban when we have Comstock on the books.” There are very strong legal arguments that Comstock cannot actually be used to effectively ban abortion, at least in places where abortion is legal. The law has not been seriously enforced for nearly a century, and a long line of court decisions stretching back to at least 1915 have read the Comstock Act narrowly to prevent it from being used as a general ban on all abortions.

Still, these precedents are only meaningful if the Supreme Court chooses to follow them, and betting on the same justices who overruled Roe to honor previous pro-abortion decisions is always a dangerous bet. It will get even more dangerous if Trump gets to appoint more justices. And, even if the Court ultimately decided to follow past decisions reading Comstock narrowly, months or years would likely pass between the Trump Justice Department’s decision to file criminal charges under the Comstock Act, and a Supreme Court decision halting that prosecution. In the interim, few, if any, distributors of medications and medical supplies are likely to risk shipping anything that could lead to themselves being prosecuted.

[...]

So where does the Comstock Act come from?

The Comstock Act is a relic, not just of a more prudish era in American history, but of an age when the sort of individual rights that modern Americans take for granted effectively did not exist. Much of the law is unconstitutionally vague. It purports to make it a crime to mail “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance,” for “any indecent or immoral purpose.” Comstock and similar laws inspired a century of litigation just to determine what the word “obscene” means, and it’s anyone’s guess which items are “lewd,” “filthy,” or “vile.”

Similarly, the law imposes a strict censorship code, targeting any “writing” that can be used “for any indecent or immoral purpose” — a provision that violates any plausible understanding of the First Amendment right to free speech. The Comstock Act’s namesake is Anthony Comstock, a 19th-century anti-vice crusader who wielded it and similar state laws against artists, authors, and reproductive health providers as indiscriminately as he wielded it against actual pornographers. Comstock once successfully brought criminal charges against an art gallery owner for selling reproductions of famous nude paintings. He also bragged, after a woman he arrested for selling contraceptive pills died by suicide, that she was the 15th person targeted by one of his investigations to take her own life.

[...] Many Republican judges, meanwhile, have been quite willing to revive long-dead abortion bans now that Roe is no longer around. Just last month, for example, Arizona’s Supreme Court reinstated a Civil War era ban on abortions — although the state legislature quickly moved to repeal that ban.  All of which is a long way of saying that the current status of the Comstock Act is highly uncertain, and will depend on who sits on the Supreme Court if and when the Justice Department decides to bring a prosecution under this law. And, even in the best-case scenario, if a future Justice Department is willing to do so, the mere threat of a Comstock prosecution is likely to shut down access to abortion pills (and potentially to surgical equipment used to perform abortions) throughout the country.

The Comstock Act, a long-dormant act, is on a revival in recent years, as anti-abortion extremists are using it as a tool to ban abortion without the need to enact a new law.

This could become scarily true if Donald Trump wins again.