Last week a decision by Arizona’s Supreme Court sent shock waves across the country.
The ruling, which upheld a law that dated back to 1864, outlawed Arizona abortions in all circumstances except to save a mother’s life. Doctors who perform abortions under the law could be fined and face two to five years in prison. It is much more restrictive than the state’s previous ban on abortion after 15 weeks of pregnancy.
The court put the ruling on hold and sent it back to a lower court for further rulings on its constitutionality, but it was unknown how long abortions would continue to be provided in Arizona.
The state court’s ruling came not long after Florida’s high court allowed the state’s ban on abortions after six weeks of pregnancy to take effect.
You might have heard of the cruel abortion restrictions in these states (as well as the 15 other states with little to no access to abortion) and thought: Well, at least we are safe in Washington.
Aside from the fact that restricting abortion in over a dozen states threatens the health and self-determination of millions of women and pregnant people and should concern all of us deeply, another little-known 1800s law might jeopardize that sense of security.
An 1873 law called the Comstock Act is a federal anti-obscenity law that was designed at the time to ban the mailing of “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.” It specifically calls out prohibiting shipping of material “intended for producing abortion, or for any indecent or immoral use.”
As NPR reported last week, “According to legal experts, Comstock could be used to stop virtually all abortion in the country, including in places it is currently legal.”
Comstock has been dormant since the 1960s, and then in 1973, Roe v. Wade prevented the act’s enforcement. But once Roe v. Wade was overturned in 2022, abortion rights opponents have seen the law as a potential avenue to do an end run around individual states’ abortion protections. Enforcing the law could prohibit the mailing or shipping of not just abortion pills but drugs and devices used in abortions.
Medication abortions accounted for 63% of all abortions in the U.S. in 2023, up from 53% in 2020, NPR reported.
Total bans on abortion are deeply unpopular in the U.S., with about 70% of people in a 2023 Gallup poll saying abortion should be legal in the first trimester of pregnancy.
Because of that unpopularity, abortion rights opponents have been careful to not talk too openly about the potential impact of Comstock on abortion access.
The New York Times reported in February that Jonathan Mitchell, the man who led the successful effort to block abortion in Texas before Roe v. Wade was overturned, said he thought pro-life groups should “keep their mouths shut as much as possible until the election.”
Mitchell said, “We don’t need a federal ban when we have Comstock on the books,” the NYT reported.
If you are one of the 7 in 10 people who think a woman should have the right to choose in the first trimester, that should sound scary.
“Project 25,” a group of conservative organizations led by the Heritage Foundation, is planning ahead for what they hope will be the next Republican administration. They created a 900-page set of plans called “Mandate for Leadership: The Conservative Promise” that lays out — among many other things — how they would rescind FDA approval of the abortion drug mifepristone and prosecute people who send abortion pills by mail using the Comstock Act, Vox reported last week.
Washington state has been a staunch defender of abortion rights, stockpiling mifepristone after the Supreme Court overturned Roe v. Wade and passing multiple bills to protect abortion care patients and providers.
As was widely predicted, abortions in Washington increased 23% in 2022, with patients seeking care from states that have effectively banned the procedure, like our neighbor Idaho and even Texas, Seattle Times journalist Alison Saldanha reported last year.
But if Project 25 and other abortion rights opponents get their way, Washington would not be immune from the impact of abortion restrictions that are causing horrendous suffering for women and pregnant people in other states.
Over the past week, pundits have argued the archaic Arizona decision is “good” for Democrats, saying the law will create a backlash against Republicans — with some Arizona Republicans already disavowing the law.
While that may be true politically, the more sobering reality is that abortion rights opponents are playing a very effective long game, and women and pregnant people are paying the price.