The recent Supreme Court’s involvement in the regulation of mifepristone has significantly disrupted the current legal landscape of reproductive autonomy. In FDA v. Alliance for Hippocratic Medicine, the Court focused on whether the anti-choice medical groups had the right to challenge the Food and Drug Administration’s (FDA) easing of mifepristone access, deciding they lacked the real injury needed to do so. But this unanimous procedural decision masks a major ideological divide that emerged earlier in the litigation. Justices Alito and Thomas signaled their skepticism of the current administrative order during the first stay in 2023. Justice Alito questioned the FDA’s expertise in determining safety, but Justice Thomas’s concurrence was a more basic constitutional argument, saying that the doctrine is not rooted in the Constitution and allows groups to “spend their way into standing” without being directly harmed. This judicial reawakening suggests that the Court’s standing obsession is a strategic delay, a tactical pause before a wider textualist confrontation with the substantive statutory issues that leapfrog procedural barriers to the heart of federal power. He has more recently called the manufacturers of mifepristone criminals and part of a "criminal enterprise." [1]
A remnant of the nineteenth-century “moral militia” serves as the statutory weapon at the heart of this escalating conflict. The Comstock Act of 1873 was born of the fervor of the Second Great Awakening, a period of evangelical crusading to make American law a vehicle for Christian teaching. The Comstock Act was a radical break with the traditions of the ancient world. In Greece and Rome, and even in Colonial America, sexual expression was generally accepted as a natural part of human experience, not subject to legal concepts of "obscenity" or "sin." However, with the industrialization and urbanization of the 1840s, the Young Men’s Christian Association (YMCA) recorded urban “vice” as a “moral Maelstrom.” Anthony Comstock, a zealous anti-vice crusader and YMCA inspector, pushed for the 1873 Act. He cautioned that obscenity was a "hydra-headed monster" that was corrupting the youth. The resulting legislation declared any article “intended for producing abortion” or preventing conception as “nonmailable” obscenity, giving the Postmaster General vast power to censor the mail and effectively limiting adult access to any material considered inappropriate for an impressionable child.
As social mores evolved into the early twentieth century, the judiciary began to shy away from the draconian literalism of “Comstockery,” adopting a “rule of reasonable construction” to reconcile Victorian morality with modern medical practice. This judicial safeguard developed when the courts perceived that strict enforcement of the Act would dangerously frustrate legitimate healthcare. But the 1874 Congress itself planted the textual seed for this narrowing, with its use of the term “unlawful abortion” in the Tariff Acts, suggesting the statute did not reach all medical procedures. In the landmark cases of Youngs Rubber Corp. v. C.I. Lee & Co. (2d Cir. 1930), Davis v. United States (6th Cir. 1933), and United States v. One Package (2d Cir. 1936), the federal courts determined that the Act did not absolutely prohibit the mailing of contraceptives or abortifacients. Instead, they read a “knowing” or “unlawful intent” requirement into the law, finding that the Act only prohibited distribution where the sender intended the items to be used for a purpose prohibited by law. This refinement was celebrated as a legislative sanction in 1971 when Congress repealed the Act’s references to contraception but left the abortion provisions intact—a move long understood to preserve the “Rule of Reasonable Construction” for professional medical use.
The Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade has injected new life into efforts to revitalize a literalist, textualist interpretation of the Comstock Act. This effort could turn the Act from an anachronistic obscenity law into a de facto national ban on abortion. Legal scholars Greer Donley and Patricia Zettler have criticized this “resurrection,” emphasizing the unprecedented challenge. Indeed, at oral argument in the AHM litigation, plaintiffs’ counsel conceded that they could not identify a single “analogue” in which a court intervened to take an approved drug off the shelf after decades of safe use. In addition, the public debate has warped subtle and complex administrative issues. While critics refer to the 2000 approval of mifepristone as an "accelerated approval" under Subpart H, which typically applies to drugs approved based on indirect measures, the FDA highlighted a specific part of Subpart H that focuses on “restrictions to ensure safe use.” This distinction is important to the “senior scholar" view as it emphasizes that the agency was taking a safety-based regulatory route rather than a speed-based route.
Modern-day conflict further complicates the Department of Justice’s “manifold uses” logic, arguing that the fact that these drugs are used lawfully in myriad ways in every state, including for miscarriage management, gastric ulcers, and life-saving procedures, means that simply mailing the medication cannot establish the “unlawful intent” necessary under 18 U.S.C. § 1461. This creates a uniform national baseline that defeats the presumption of illegal intent even in restrictive jurisdictions. But recent upheavals in administrative law by the Supreme Court endanger the stability of that interpretation. Overruling Chevron in Loper Bright Enterprises v. Raimondo removes the FDA’s exclusive expertise in interpreting ambiguous statutes, and the ruling in Corner Post, Inc. v. Board of Governors opens the door to new challenges to the original 2000 approval that had been thought to be barred by the six-year statute of limitations. These changes provide a roadmap for states to argue that the FDA’s interpretation of its authority under Subpart H is incorrect and not entitled to deference.
The next phase of this litigation will likely be a tension between a textualist “resurrection” of the 1873 Act and the First Amendment protections of medical information. The Miller test for “obscene” material requires that the material be patently offensive and have no serious literary, artistic, political, or scientific value. Medical information relating to access to abortion obviously fails these prongs, which implies that a broad Comstock prosecution would have significant constitutional issues. Moreover, requiring the FDA to conduct Comstock Act analyses would be an extraordinary expansion of “hard look” review, requiring an agency to interpret a criminal statute administered by the Postmaster General—a task that lies well outside of its scientific expertise. As the judiciary continues to move toward an attitude of administrative skepticism, the key question is whether the "Rule of Reasonable Construction" can survive a court increasingly inclined to prefer the plain, nineteenth-century text of the "moral maelstrom" to a century of settled medical and legal practice.
Sources:
[1] https://www.newsweek.com/supreme-court-mifepristone-alito-thomas-dissent-11952809
Dorf, Michael. Comstockery and Popular Constitutionalism. https://www.bu.edu/bulawreview/files/2025/01/DORF.pdf
Dorf, Michael. https://www.dorfonlaw.org/2026/05/the-mifepristone-dissents-by-justices.html
Noah, Lars, Medication Abortion and the Mails: The Ghost of Anthony Comstock Rides Again? (February 02, 2025). Georgia St. U. L. Rev., vol. 41 (forthcoming May 2025), Available at SSRN: https://ssrn.com/abstract=5121876 or http://dx.doi.org/10.2139/ssrn.5121876
Siegel, Reva B. and Ziegler, Mary. Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It (November 24, 2024). Yale Law Journal, Forthcoming, Yale Law School, Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=4761751
Stone, Geoffrey. Sex and the First Amendment. The Long and Winding History of Obscenity Law. University of North Carolina School of Law Scholarship Repository. https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1267&context=falr
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