New legislation would repeal parts of the Comstock Act, a Victorian-era law that's being revived to attack abortion pills.

Passed in 1873, the Comstock Act was a big deal in earlier eras, sending people to prison for publishing information about birth control, critiques of marriage, and more.

The law is vague and broad, banning the mailing of any "article, matter, thing, device, or substance" that the government deems "obscene, lewd, lascivious, indecent, filthy or vile," along with anything "designed, adapted, or intended for producing abortion, or for any indecent or immoral use." Essentially, the Comstock Act weaponizes the U.S. Postal Service to give the federal government an in against things that otherwise wouldn't be its business.

"Anthony Comstock, the law's namesake and an anti-smut crusader, lobbied for and personally enforced the law as a special agent of the U.S. Postal Service," noted the Foundation for Individual Rights and Expression (FIRE) lawyer Robert Corn-Revere in a recent piece for Reason about efforts to posthumously pardon publisher D.M. Bennett. "Under the law's broad mandate, everything that Comstock considered immoral was by definition obscene and, therefore, illegal. Comstock's concept of immorality included blasphemy, sensational novels and news stories, art, and even scientific and medical texts." (You can read more about Comstock, "the prodigal censor," here.)

The Comstock Act lay dormant for a while, rendered toothless in part by court interpretations of the First Amendment that were more vigorously protective of free speech. But these days, activists and politicians opposed to abortion are trying to revive the law, seeing its potential usefulness in going after mifepristone and misoprostol, the two-pill regimen approved to end first-trimester pregnancies.

The resurgence of interest in the Comstock Act underscores the need to repeal bad laws, not simply assume them defanged by decades of latency.

The Biden administration certainly isn't going to start prosecuting people under the Comstock Act, but a more conservative future administration could. "[Donald] Trumps' [sic] advisors are…arguing that the Comstock Act is a de facto national abortion ban already on the books," says Madison Roberts, senior policy counsel at the American Civil Liberties Union (ACLU). "They are wrong. The Department of Justice has made clear and federal appeals courts have uniformly held for almost a century that the Comstock Act does not apply to legal abortion care. But anti-abortion extremists have manipulated the law to ban abortion before, and there's no reason to think they won't try it again."

Moreover, the law was cited in a legal challenge to abortion pills and the U.S. Food and Drug Administration's decision to let them be sent via mail. The district judge who first heard the case (and sided with the plaintiffs) wrote that "dispensing of chemical abortion drugs through mail violates unambiguous federal criminal law." That case was shot down by the U.S. Supreme Court last week on procedural grounds, but it certainly won't be the last attempt to stop the prescription and mailing of abortion pills. Nor is it likely to be the last time Comstock is invoked for this purpose—unless the act is revised or repealed.

"It is too dangerous to leave this law on the books," Sen. Tina Smith (D–Minn.) said in a statement.

The Stop Comstock Act, which Smith is slated to introduce soon (no draft has been released yet, however), would repeal the parts of the law "that could be used by an anti-abortion administration to ban the mailing of mifepristone and other drugs used in medication abortions, instruments and equipment used in abortions, and educational material related to sexual health," per Smith's press release. A companion bill will be introduced in the House by Rep. Becca Balint (D–Vt.).

This is good, but not far enough, if it only partially repeals the law.

Why stop with repealing the parts that could be used to target abortion? The Comstock Act's reach is much more broad than that, and every bit could do some damage in the wrong hands.

Here's the full spate of things that the Comstock Act declares criminal to mail:

Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

Every 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; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing.

It's time to repeal the whole thing.

Today, it's only the abortion part of the law that people are trying to revive. But a few years ago, most of us weren't expecting a Comstock revival at all. Who's to say that a few years from now, people won't try to use it against all sorts of information, art, etc. that they don't like?

If we want to stop the Comstock Act from ever again being used to suppress speech, restrict access to contraceptives, punish people for homosexuality, and more, then we need to stop the Comstock Act entirely.

The post The Stop Comstock Act Doesn't Go Far Enough appeared first on Reason.com.

This month, the Supreme Court refused to consider a request by anti-abortion groups to impose nationwide restrictions on mifepristone, a safe medication used in most U.S. abortions and for miscarriage care. Without addressing whether mifepristone should be further restricted, the court found that these anti-abortion plaintiffs lack “legal standing” – meaning they do not have a sufficient connection to the Food and Drug Administration’s (FDA) regulation of mifepristone to be able to challenge the agency’s decisions in court.

The court’s decision is a relief, but we should not be dazzled by the fact that the justices did the right thing based purely on a legal technicality. While the Supreme Court refused to allow these particular anti-abortion groups to bring this case, extremist politicians have vowed to continue to use the courts and the law to strip away access to medication abortion nationwide. Below, we break down why this case matters, and what happens next.

The plaintiffs in Alliance for Hippocratic Medicine v. FDA are organizations and doctors who want to see all abortion banned nationwide. To further their agenda, they used junk science to target access to mifepristone, a medication used in most U.S. abortions. They filed this lawsuit in Amarillo, Texas, where they could guarantee it would be heard by a Trump-appointed district court judge with a record of hostility to abortion. That district judge rubber-stamped all of their requests, and the Fifth Circuit Court of Appeals largely did the same – overriding the consensus of the FDA and every leading national medical authority in order to impose medically unnecessary restrictions on mifepristone.

In its decision, the Supreme Court did not address the plaintiffs’ arguments that mifepristone should be severely restricted. The court found that the lawsuit suffered from a critical defect: the anti-abortion groups and doctors who brought the case lack legal standing. As the court explained, these anti-abortion plaintiffs don’t prescribe mifepristone and have no actual connection to the FDA’s regulation of the drug. Instead, “the plaintiffs want [the] FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain.” But under the Constitution, “a plaintiff ’s desire to make a drug less available for others does not establish standing to sue.”

For now, the court’s decision preserves the state-level patchwork access to medication abortion that has existed since the Supreme Court overruled Roe v. Wade in 2022. That means that, for the time being, people across the United States can continue to fill their mifepristone prescriptions through mail-order and retail pharmacies, just as they would for any other similarly safe medication – without having to travel, sometimes hundreds of miles, just to pick up a pill. Health care professionals with specialized training, like nurse-practitioners, will also maintain the ability to prescribe mifepristone where state law allows. Furthermore, in the U.S. nearly 1 in 5 abortions relies on telemedicine. For many people – including low-income patients, people of color, folks in rural areas, and women in abusive households – retaining accessibility options, such as telemedicine, is essential – especially when it may be impossible to arrange and afford lengthy transportation and childcare, to secure time off work, or to escape the surveillance of an abuser in order to access time-sensitive care.

The court’s order also forestalls the dire consequences the American Cancer Society and many other patient advocacy groups warned of should the court override the FDA’s actions and undermine drug development and impede access to critical medications well beyond reproductive health care.

There is no credible dispute about mifepristone’s safety. The nation’s leading medical associations describe the science confirming its safety as “overwhelming.” While all drugs carry risks, medical experts have explained that mifepristone is among the safest medications used in medical practice today – safer than Viagra or penicillin – with serious complications experienced by fewer than 1 percent of patients.

By contrast, the plaintiffs’ evidence rested on testimony and research from a few anti-abortion doctors who travel the country peddling junk science about abortion safety. As the ACLU explained in a friend-of-the-court brief, when other courts have heard these folks testify, time and again, they have discredited them. For instance, Dr. Ingrid Skop – cited 17 times in the appellate court’s ruling– had her testimony on abortion thrown out by a Florida court two years ago for being “inaccurate.” Dr. Skop admitted under oath in 2020 that she is “not a really good researcher,” so it’s no surprise that her research on mifepristone was published by a fringe advocacy group known for promoting blatantly false conspiracy theories, such as that President Barack Obama hypnotized listeners with his speeches. Several of the studies relied on by these plaintiffs have been retracted because they are so profoundly flawed. Another study is based on 98 anonymous blogs.

Maintaining access to mifepristone has never been more crucial. Since it was approved in 2000, nearly 6 million people in the United States, and millions more globally, have used this medication. Today, medication abortion comprises almost two-thirds of all abortions in this country.

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The Supreme Court refused to allow these particular anti-abortion groups to bring this case, but extremist politicians are waiting in the wings to continue this campaign to strip away access to medication abortion nationwide. Indeed, the same Trump-appointed district judge in Texas has already permitted Idaho, Kansas, and Missouri to intervene in the district court proceedings on the same side as the anti-abortion groups. And these extremist politicians have said that they will try to continue this case in Texas – even though the Supreme Court just found that the original plaintiffs lack standing – or else bring copycat lawsuits in other jurisdictions.

Moreover, in the coming weeks, the Supreme Court will decide another abortion case that will determine whether politicians can force doctors to withhold emergency room care from their patients suffering severe pregnancy complications. These cases show how far politicians will go to prevent people from getting the reproductive health care they need.

Since Roe was overturned, every time an abortion issue has been put to the ballot, the people have voted in favor of access. Politicians are relentless in their attacks, but a majority of this country believes that people must have the power to make personal decisions during pregnancy. We’ll continue using every tool at our disposal to fight back against these cruel and deeply unpopular attacks on our health, our futures, and our bodily autonomy.

Join us in this fight to expand and restore our rights by urging legislators to pass federal legislation that safeguards our reproductive freedom – including abortion, birth control, AND IVF care.

The sorry history of anti-miscegenation and forced sterilization laws in the U.S. provides ample evidence that preemptive government interference in the reproductive decisions of its citizens should be strongly rejected. In a free society, the default should be that individuals are best situated for weighing the costs and benefits, moral and material, with respect to how, when, with whom, and whether they choose to become parents.

The now infamous Alabama Supreme Court decision earlier this month essentially outlawing the use of in vitro fertilization (IVF) by would-be parents highlights the consequences of unwarranted government meddling in reproductive decisions all too well. At its most basic, IVF is a treatment for infertility involving the fertilization of eggs in a petri dish with the goal of installing them afterward in a woman's womb where they have a chance to implant and hopefully develop into a healthy baby. Since the implantation of any specific embryo is far from guaranteed, IVF often involves creating several embryos that are stored in liquid nitrogen that could be made available for later attempts at achieving pregnancy.

Some 12 to 15 percent of couples in the U.S. experience infertility. Fortunately, since 1981 many infertile folks have been able to avail themselves of IVF and assisted reproduction techniques with the result that more than 1.2 million Americans have been born using it. Currently, about 2 percent of all babies in the U.S. are born through assisted reproduction. A 2023 Pew Research poll reported that "four-in-ten adults (42%) say they have used fertility treatments or personally know someone who has." Given the wide public acceptance and ubiquity of IVF, it is no surprise that a new Axios/Ipsos poll finds that two-thirds of Americans oppose the Alabama court ruling that frozen IVF embryos are the equivalent of born children.

The moral intuition that embryos are not people implied by these poll results reflects what research has revealed about the fraught and complex biology of uterine implantation and pregnancy. In both IVF and natural conception most embryos will not become babies. Research estimates that between 50 to 70 percent of naturally conceived embryos do not make it past the first trimester. In other words, one foreseen consequence of conception through sexual intercourse is the likely loss of numerous embryos.

In his 2012 Journal of Medical Ethics article, University of Illinois Chicago philosopher Timothy Murphy argued that the moral good of the birth of a child counterbalances the unwanted but nevertheless foreseen loss of other embryos in both natural and IVF conception. Again, polling suggests that most Americans endorse this moral reasoning.

In another 2012 article speculating on the metaphysical ramifications of endowing embryos with souls, Murphy basically recapitulates the line of reasoning in my 2004 article asking, "Is Heaven Populated Chiefly with the Souls of Embryos?" There I suggest that "perhaps 40 percent of all the residents of Heaven were never born, never developed brains, and never had thoughts, emotions, experiences, hopes, dreams, or desires."

Murphy similarly concludes, "Since more human zygotes and embryos are lost than survive to birth, conferral of personhood on them would mean—for those believing in personal immortality—that these persons constitute the majority of people living immortally despite having had only the shortest of earthly lives."

Metaphysical conjectures aside, former President Donald Trump clearly knows where most Americans stand on IVF. "We want to make it easier for mothers and fathers to have babies, not harder! That includes supporting the availability of fertility treatments like IVF in every State in America," he posted on Truth Social. He's right.

Now, the 124 denizens of the House of Representatives (all Republicans) who cosponsored just over a month ago the Life at Conception Act are scrambling to explain that, no, they did not really mean that every frozen IVF embryo is a "human person" entitled to the equal protection of the right to life. As a butt-covering move, Rep. Nancy Mace (R–S.C.) is circulating a House resolution "expressing support for continued access to fertility care and assisted reproduction technology, such as in vitro fertilization."

More substantially, Sen. Tammy Duckworth (D–Ill.) is pushing for the adoption of the Right to Build Families Act that states, "No State, or official or employee of a State acting in the scope of such appointment or employment, may prohibit or unreasonably limit…any individual from accessing assisted reproductive technology."

The post Parents, Not the Government, Should Make IVF Decisions appeared first on Reason.com.