Can an 1873 law justify a national abortion ban? The Supreme Court has given itself until Friday midnight to make an emergency decision on access to mifepristone, a drug used in half of all U.S. abortions. Whatever the outcome, it’s just a preliminary round in the battle over U.S. District Court Judge Matthew Kacsmaryks’ ruling earlier this month to block the drug’s FDA approval. Kacsmaryk’s attack on the abortion pill is

packed with bold legal claims. One of the most alarming aspects is the resurrection of the Comstock Act, a 150-year-old law that, if brought to its logical conclusion by anti-abortion forces, would make a federal crime of

each

abortion performed in America.

The Comstock Act, enacted in 1873 as part of a crusade against vice, prohibits, among other things, the sending or transportation between states of any article or thing designed, modified, or intended to produce abortion. As Mary Ziegler, a law professor at UC Davis, warned in these pages, Kacsmaryk’s Comstock Act interpretation

is “explosive” because all such procedures rely “on drugs and devices that can be shipped to clinics, hospitals and doctor’s offices.” That explains why the Comstock Act

center

of an attempt to ban abortion nationwide.

According to the Biden administration, the Comstock Act will never be enforced in this way. Administration lawyers argue that the law applies only to the shipment of drugs with the intent that they be used unlawfully. Because mifepristone can be used in multiple legitimate ways, the mere act of sending it to a jurisdiction where abortion is prohibited is insufficient to show that the sender intended to use it illegally. Such a reading is rooted in nearly a century of legal precedent that Congress has never overturned.

But if Kacsmaryk’s interpretation of the law is allowed, and once a Republican is back in the White House, all bets are off. Abortion, regardless of the method, can be criminally punished even if the procedure is legal as a matter of state. law.

However, there is a way to counter Kacsmaryk’s ruling that would be difficult even for the current

anti-abortion

High Council

majority

dodge.

Remember that before the Dobbs vs. Last year’s Jackson Women’s Health Organization ruling the right to abortion was protected by two provisions in the US Constitution. The 14th Amendment’s due process clause recognized abortion as a “liberty” against which it is protected

stands

hardship And the 5th Amendment’s due process clause protected abortion as a “freedom” from encroachment by the

federal

government.

By enforcing Mississippi’s 15-week abortion ban, Dobbs nullified the 14th Amendment, the right to abortion. But because no federal law was involved, Dobbs did not nullify the right to the 5th Amendment. On the contrary: the “history and tradition” tests that Dobbs

announced strongly suggests that a 5th amendment abortion right has a firm foundation.

Dobbs says the test of whether abortion is a constitutionally protected “freedom” is whether it was “deeply rooted in history and tradition” at the time of the enactment of the relevant constitutional amendment. Dobbs claimed that the “most important historical fact” that overturned a 14th Amendment right to abortion is that many states banned abortion during pregnancy when that amendment was ratified in 1868.

But if that is the correct test, then to decide whether there is a right to abortion under the 5th Amendment, the court would have to question the history and tradition of access to abortion in 1791, when that amendment was ratified. And as Dobbs admits, at the time

every state in the union

embraced the expeditious rule: medically safe abortions were penalized only if they were performed after the fetus moved in the womb, usually after 16 to 18 weeks of gestation.

below

the

Dobbs

‘

then test, the age-old, unified tradition of allowing pre-accelerating abortion supports a 5th Amendment right to abortion well into the second trimester of pregnancy. And that means that attempts by anti-abortion forces to ban abortion nationwide through the Comstock Act would be unconstitutional.

Anti-abortion advocates might argue that the mere absence in 1791 of state prohibitions on pre-accelerating abortion should not create a compensatory right to abortion. But conservative Supreme Court justices rejected a similar argument

in another case last year it revolved around history and tradition, this time with the effect of radically expanding access to guns.

New York State Rifle & Pistol Assn. vs. Bruen challenged a New York law that imposed restrictions

“

public wear

“

to those who can demonstrate a need for self-protection. The Supreme Court ruled that the 2nd Amendment made that law unconstitutional because similar restrictions were not in place during early American history. New York’s gun safety law was therefore inconsistent with this country’s historical tradition. Federal courts have already applied this rule to extend constitutional protections to dazzling forms of behavior, including domestic violence perpetrators’ desire to own a gun, if only because states didn’t enact similar prohibitions centuries ago.

But if the lack of certain gun control laws when enacted means that such laws are unconstitutional today, then the lack of a total ban on abortion in 1791 means that such a law would

so now

be unconstitutional. In other words, either the court can uphold the Comstock Act as a nationwide abortion ban, or it can provide sweeping new constitutional protections for gun owners. It cannot logically or consistently do both.

Ultimately, hand-wringing the Comstock Act and how the Supreme Court interprets it is completely avoidable. Congress can and should repeat the 1873 law for many reasons. In the sense of the law, it can be read as blocking access to used safe medication

thousands of

pregnant people, it dangerously intrudes into private, medical decisions. The criminal penalties for abortion are completely contrary to the attitudes and beliefs of the American people.

And by ignoring the history of access to abortion at its inception, it flies in the face of even the current Supreme Court’s ultra-conservative approach to constitutional rights.

Aaron Tang is a law professor at UC Davis and a former clerk to Judge Sonia Sotomayor. This essay is based on a forthcoming Stanford Law Review article. @AaronTangLaw.