Analysis: 19th century chastity law endangers 21st century abortion medicine
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The Wild West of the post-Roe v. Wade legal landscape is focused on a lone federal judge in Amarillo, Texas, who could use a 19th century law to limit access to abortion medication for every American woman.
The judge, 45-year-old Matthew Kacsmaryk, held a hearing Wednesday about whether he should impose a preliminary injunction that would require the US Food and Drug Administration to withdraw or suspend its approval of the drug, mifepristone, while a larger case progresses.
Mifepristone is taken along with another drug, misoprostol, as part of the two-step medication abortion process. Misoprostol can be prescribed on its own, but it is considered less effective.
Kacsmaryk, who sounded open to the idea of restricting access to mifepristone, will have to agree with some or all of these general points raised if he decides to issue an injunction:
- That doctors who don’t perform abortions and live in Texas, where abortions are already banned, are harmed by abortions conducted elsewhere.
- That an FDA approval conducted over the course of four years and finalized 23 years ago was so flawed that it should be rescinded.
- That a single federal judge in Amarillo should do what no federal judge has ever done and unilaterally rescind an FDA approval.
- That a drug, which studies suggest is on par with ibuprofen in terms of safety, is actually so harmful it should be reconsidered by the FDA.
CNN’s Tierney Sneed wrote a longer list of takeaways from the hearing, where anti-abortion rights doctors and activist groups teed up their lawsuit in Kacsmaryk’s courtroom to further limit access to abortion care in the US.
It’s important to note that no matter what Kacsmaryk does, it will be appealed up through the 5th US Circuit Court of Appeals and potentially to the Supreme Court.
But perhaps the most incredible question Kacsmaryk faces is whether an 1870s chastity law named for an anti-vice crusader, Anthony Comstock, should be resuscitated and applied to the medicine that now accounts for a majority of US abortions.
Comstock operated the New York Society for the Suppression of Vice and was a special agent of the US Postal Service. He was known for seizing contraband like contraceptives and condoms in the name of rooting out obscenity, according to the New York Historical Society.
Mary Ziegler, a law professor at the University of California, Davis who has written about the Comstock Act for CNN Opinion, described Comstock as being “obsessed by what he saw as the decaying morals of a country preoccupied with sex.”
The law he inspired barred not just the mailing of “obscene books” but also birth control and abortion drugs and devices. In the 19th and early 20th centuries, the Comstock Act was used to prohibit the mailing of many literary classics, from Geoffrey Chaucer’s “The Canterbury Tales” to works by James Joyce and Walt Whitman.
Comstock himself proudly carried a gun and scoured the mail for cases involving information about abortion or contraception, even if a doctor provided it. By Comstock’s standard, the law was a great success: he claimed to have destroyed 15 tons of books, arrested more than 4,000 people and driven at least 15 people to suicide.
While Congress has acted to relax elements of the Comstock Act, including to allow the mailing of contraceptives, it is still technically on the books with regard to the mailing of anything that could be used for an abortion.
During the Covid-19 pandemic, the FDA dropped its requirement that a person obtain mifepristone in person. A prescription is still required.
In December, the Department of Justice notified the US Postal Service that the Comstock Act did not apply as long as “the sender lacks the intent that the recipient of the drugs will use them unlawfully.”
The FDA permanently removed the in-person requirement in January, hoping to guarantee more access to the medication after the Supreme Court ended Roe v. Wade last June.
The group that brought the Texas lawsuit, the Alliance for Hippocratic Medicine, wants to reapply the Comstock Act and restrict the mailing of abortion medication.
The FDA’s already exhaustive and detailed drug approval process was especially scrutinized for mifepristone, which was more commonly known as part of the RU-486 regimen when it became available to American women at the turn of the century.
It had been available in Europe for a dozen years before that. Here’s CNN’s report from September 2000.
That the drug works safely as a means of abortion is not really up for dispute as a medical matter after all that time, according to CNN’s Jen Christensen, who explains more about the medication in this article about mifepristone.
Another CNN data analysis suggests mifepristone is safer than penicillin and Viagra.
Mifepristone has a death rate of 0.0005% – five deaths for every 1 million people in the US who used it. Penicillin’s death rate is four times greater. Viagra’s is 10 times greater, according to the analysis by CNN’s Annette Choi and Will Mullery.
Kacsmaryk had a long history of challenging laws providing greater access to reproductive rights before he became a federal judge. While he has promised to be an impartial judge, every Democrat and one Republican, Sen. Susan Collins of Maine, opposed his nomination in 2019.
Now Kacsmaryk is the only federal judge at the courthouse in Amarillo, which almost guarantees he hears cases filed there.
So it may be no coincidence that the group challenging use of mifepristone set up an outpost months before filing its lawsuit. The group is based in Tennessee, but one of the doctors named as a plaintiff in the lawsuit practices near Amarillo.
However one feels about judicial shopping and whether that happened in this case, the word appears to be out that a conservative judge is alone in Amarillo and open for business.
According to a CNN profile, Kacsmaryk has also put on hold Biden administration policies related to immigration and overseen cases related to vaccine requirements and gender identity. Last December, he halted a federal program in Texas that allowed minors to get birth control without their parents’ consent.
That suit regarding the birth control program established in 1970 was brought by a Texas father “raising each of his daughters in accordance with Christian teaching on matters of sexuality,” which he said forbids premarital sex.
Kacsmaryk agreed, even citing the Catechism of the Catholic Church in his decision to say “contraception (just like abortion) violates traditional tenets of many faiths, including the Christian faith Plaintiff practices.”
His sister described him to The Washington Post as an anti-abortion rights activist and detailed her own decision to give a child up for adoption rather than seek an abortion.
“He’s very passionate about the fact that you can’t preach pro-life and do nothing,” Jennifer Griffith told the Post. “We both hold the stance of you have to do something. You can’t not.”