The Heritage Foundation has set out an ambitious totalitarian agenda for the next Republican president, whoever it might be. Don’t think that women’s bodies are exempt from their plans, not by a long shot. They’ve been working on a plan to use a 19th-century law written to prevent women from obtaining contraceptives, allowing the next Republican administration to outlaw most abortions.
The 1873 Comstock Act prohibits the mailing of contraceptives, “lewd” writings, and any “instrument, substance, drug, medicine, or thing” that could be used in an abortion. While it’s been dormant since the U.S. Supreme Court’s Griswold v. Connecticut decision in 1965, the law is still on the books. It has experienced a revival in the 21st century GOP. Wing-nut U.S. District Judge Matthew Kacsmaryk cited it when he ruled last spring to block the Food and Drug Administration from allowing mifepristone, the pill used in more than half of U.S. abortions, to be sent through the U.S. mail. That is still being litigated.
Now that 1873 is back in vogue, the Heritage Foundation argues that the next president can act unilaterally to do just what Kacsmaryk ordered. Comstock "unambiguously prohibits mailing abortion drugs," and a Republican president should "enforce federal law against providers and distributors of [abortion] pills."
The Biden administration disagrees. As long as the medication is being sent to someone living in a state where abortion is legal and intends to use it legally, there is no violation of Comstock, the Justice Department advised in a recent memo.
That’s unlikely to be an interpretation a Republican administration would support. "If Trump were elected, not only would I not be surprised, but I would expect the administration to direct DOJ to overturn its guidance on the Comstock Act and rule that shipping mifepristone through the U.S. Postal Service is a violation of that statute," Lawrence Gostin, a Georgetown Law professor, told Axios.
The Supreme Court could get there first. The drug is still available, despite Kacsmaryk’s best efforts, because the Supreme Court has allowed it to be, staying his rulings as the lower courts consider an appeal. The Department of Justice and a manufacturer of the drug asked the court to intervene in a September appeal. It hasn’t put the case on its docket. Yet.
That’s the legal side of it. On the political side, boy do Democrats need to be talking about this! A law from 1873 being used to end abortion nationally, by presidential fiat? That’s extreme stuff. Who’s to say that contraception won’t be next?
Then when Democrats win back the House, Senate, and White House in 2024 on the abortion issue, repealing the Comstock Act needs to be at the top of the legislative agenda.
Trump and the Heritage Foundation's fascist agenda
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Justice Department is moving quickly in wake of Trump judge's outrageous order against mifepristone