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  • Writer's pictureNicole Vorrasi Bates

Is A National Abortion Ban Inevitable?




May 6, 2024. Is a national abortion ban inevitable? Unfortunately, it is. Unless of course, President Biden publishes the Equal Rights Amendment.


You are probably thinking “Why can’t we just vote in pro-choice candidates to stop this? If the Democrats control the House, Senate, and White House, surely there won’t be a national abortion ban?”


Wrong. Without the ERA in the Constitution, it’s coming regardless of who wins the 2024 elections.


You may have heard about the Comstock Act as it has been discussed more frequently after the Dobbs decision, particularly in the context of the challenges to mifepristone, the medication primarily used to manage abortion and miscarriage.


The Comstock Act is an 1873 anti-lewd material law that remains on the books. It prohibits the mailing or other shipment of, among other things, any “article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose.”   


Unfortunately, Congress never took the time to repeal the Comstock Act. Although it is valid law, the Comstock Act has not been enforced for decades as it was rendered meaningless by Roe v. Wade, which provided a constitutional right to abortion. So when Roe was overturned, anti-abortion advocates jumped at the opportunity to bring it back to life.


Shattering Glass has filed multiple amicus briefs in support of the safety, efficacy and availability of mifepristone in the US Food and Drug Administration v. Alliance for Hippocratic Medicine. In that case, the Alliance for Hippocratic Medicine has challenged the safety of mifepristone and claims that shipping of the drug violates the Comstock Act.


While we are awaiting a decision from SCOTUS by the end of June, at oral argument, Justices Alito and Thomas made clear their position that the Comstock Act is unequivocal and very relevant today. That is particularly troubling.


Senator Tina Smith recently penned a NYT Opinion on the Comstock Act, shinning a light on the imminent dangers the Comstock Act presents. Senator Smith is spot-on. The Comstock Act can be used as a backdoor to a national abortion ban - even in states where abortion is already protected.

 

How is that possible? The Comstock Act applies not only to drugs, but to the tools, supplies and equipment used to perform abortions.

 

In fact, we have been warning of the dangers of the Comstock laws since 2021, as we have been urging President Biden to direct the Archivist to publish the ERA. The ERA would render the Comstock Act meaningless and send it back to obscurity. 

 

Unfortunately, publication of the ERA is the only viable option to defeat the efforts of conservative activists such as the Heritage Foundation and National Right to Life Committee, and that is why they have become incredibly concerned that the ERA will be published.

 

In the current political environment, repeal of the Comstock laws will not happen in this Congress or likely the next few, given it will take 60 Senators to repeal the Comstock Act.

 

Until then, the courts are free to use the Comstock Act to ban abortion nationwide without the necessity of further Congressional action and regardless of who is in the White House.

 

That is precisely why we need President Biden to publish the ERA immediately. And why the calls for ERA publication are growing exponentially. We hope you will join us in the fight.

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