The Comstock Act and Future Outlook

This is the Guardian . Hey, it's Carter Sherman here, host of The Guardian's new podcast Stateside with Kai and Carter. Today we're bringing you one of our latest episodes. It looks at why the political and legal fight over abortion pills in the US is really just at the beginning. Listen on to hear the episode in full and find all of our shows every Monday, Wednesday, and Friday on Apple Video Podcasts What I see in terms of anti-abortion movement rhetoric is that I fear that there is going to be a continued push to criminalize the abortion patient. Ten years ago, this was almost unthinkable that the anti-abortion rights movement would say out loud that a strategy for reducing the number of abor tions was to put abortion seekers or abortion patients in jail. But now we're seeing more and more of this conversation in the press, and we're also seeing state legislatures taking this up from the guardian this is stateside I'm Carter Sherman I'm Kyra today the fight over abortion pills is just beginning. Kai , as you know, before I entered the glorious world of podcasting with this show, I covered gender and sexuality for 10 years. So I wanted to bring you a fact you might not know. In the years since the US Supreme Court overturned Roe v. Wade, abortions in the US have actually gone up, not down . In twenty twenty four, for example, there were more than one point one million abortions in the United States, which is the highest number on record in recent years. Is that considered a surprising victory in the abortion rights movement? Well, I think it speaks to the breadth and the depth of the organizing that advocates have undertaken in the years since Roe fell. In particular, advocates have worked very hard on expanding access to abortion pills and they have started mailing pills into states with abortion bans so that even people who live under those bans can still end their pregnancies. For the anti-abortion movement though, this isn't as essential threat. Right. And recently the fight over abortion pills made its way all the way back up to the Supreme Court. Aaron Powell And when you say abortion pills, just so we can level set, what are we talking about? Aaron Powell Well, in a medication abortion, which is a abortion that is mediated through drugs, there are two drugs that people tend to take. The first is called mifaprist one. And you take one dose of it. Twenty-four hours later, you take doses of a second drug called misoprostol. The mifopristone stops the pregnancy from growing. The misoprostol contracts the uterus so that it expels the pregnancy. And it is after that taking of the second drug, mesoprostol, that people tend to have the side effects that you associate with an abortion. So bleeding, cramping, nausea, diarrhea, etc. So it's myfoprostone and mesoprostol, right? Which one of them is at stake now in the court fight? Okay. So that is mifopristone. Got it. Mifopristone is the drug that is at stake right now. Last year, Louisiana sued the FDA over the fact that it allows abortion providers to mail miphopristone. And on May 1st, the Fifth Circuit Court of Appeals ruled to pause mail order access to Mifopristone while litigation in Louisiana's case plays out. Easily the most conservative court in the appeal circuit. Absolutely. So what that means is that under the Fifth Circuit's ruling, no one can get access to mail order miphopristone, including people who live in states that don't ban abortion, people who live in blue states who might think that their abortion rights are protected. Aaron Powell And are they arguing in court that they're doing this because MIFA pristone is unsafe? Is it a safety d debate we're having here? Aaron Powell That argument has entered the ch at, shall we say, but it's not really a good faith argument. Miferpristone and mesopristol are incredibly well researched. More than a hundred studies conducted across more than a dozen countries have found that when you use these two drugs to end a pregnancy, it is a safe and effective abortion method in the first trimester of pregnancy. Now, the thing to understand here is that it is possible to have a mesoprostal only abortion and just use that second drug in the regim en. But it tends to be less safe and less effective. But abortion providers have said that if they're not allowed to mail mifopristone anymore, they'll send people mesoprostal only. Trevor Burrus So now I did follow this court case. Many people will have seen the news that the Supreme Court has decided to allow continu in that Louisiana case to allow continued access to Mipha Pristone, right? So again, this seems like a victory and is that the end of it? Um that uh you know, th that we continue to have access to abortion pills now? Well, no. Basically what the Supreme Court did is they just punted. They just kicked the can down the road, and presumably they might want to avoid having this argument in open court until after the midterms. There's a lot to unpack here, and we're gonna get into it. We don't know what the Supreme Court is ultimately going to do with abortion pills. But the thing that haunts me is that in the years before Roe v. Wade was overturned, when I was working as a reporter covering abortion rights, I spent a lot of time telling people that Roe was going to be overturned. And the thing was that people just didn't believe me. They just did not think that that was possible. And And I think a lot about this woman I spoke to in the summer of 2021. I was working on a story then called The Last Summer of Roe v. Wade. And I asked her why she wasn't worried about the erosion of abortion rights. And she said, quote , we're two countries and that's happening more in the other one. Aaron Powell This is an all-too common perspective on a whole lot of issues, and uh a lot of people are being disabused of that belief uh here lately. Aaron Powell Right. We now live in a country where about a dozen states ban virtually all abortions. And for the people who live in those states, oftentimes their only way to end their pregnancies to get an abortion is to get miphopristone through the mail. To that end, I recently spoke with someone who's on the front lines of this issue. Her name is Dr. Angel Foster, and she is an abortion provider who mails abortion pills to people throughout the country, including people who live in states with abortion bans. I spoke to her about what the last few weeks have been like for her and the women her practice treats. But the thing hanging over our entire conversation is that I think the recent Supreme Court case indicates that the anti-abortion movement already has the tool that it needs to ban abortion. And when I say ban abortion, I don't just mean abortion through the mail, I don't just mean Miphic Pristone. I mean that the anti-abortion movement may already have the tool to ban abortion nationwide for everyone under virtually all circumstances. So if you are a person who supports abortion rights, and most Americans are, you really need to pay attention to what is happening with abortion pills. Dr. Angel Foster, thank you so much for joining us on Stateside. Thanks so much for having me. It's nice to speak with you. You run the Massachusetts Medication Abortion Access Project, or the MAP. And I think since the overturning of Roe, the MAP has probably become one of the biggest abortion providers in the country. I actually visited you guys, as you might remember, several months ago, and watched volunteers pack pills, put together packages to send two pati ents . And I'm wondering how many abortions is the map facilitating each month at this point? So we're providing care to between 3,000 and 3,500 patients a month. And we we launched on September 28th of 2023, which was International Safe Abortion Day. And since our launch, we've now cared for more than 50,000 patients. Who is a typical patient for the map? Is there a typical patient? So um about a third of our patients are from Texas. About 90% of our patients come from near total band states or six-week band states. And so we are both caring for patients that previously got in person care and I think what we're now seeing is that folks who um weren't able to get abortions prior to DOBS because they couldn't afford it and couldn't navigate the systems are now being able are are now able to access high quality affordable abortion care. It's been a long few weeks for you. On May first, the Fifth Circuit ruled that abortion providers could no longer mail Mipha Pristone after Louisiana sued over access to that common abortion pill. On May 4th, the Supreme Court stayed that ruling preserving access to MiFepristone, but that kicked off more than a week of uncertainty about the pill's future. We are speaking the day after the Supreme Court issued a decision that preserved the status quo and preserves access to mail order miphapristone. But this is definitely not the end of the case. I'm wondering what have those last few weeks been like for you? Um it has been a tough two weeks. So the Fifth Circuit's decision was released on May 1st, which was a Friday. Um we had already sent packages to patients that afternoon before the decision was announced. Packages of abortion pills. Packages of abortion pills that included miphopristone and mesoprostal. So over that weekend, we were really working with three different groups of patients . The first were the three hundred and fifty or so patients that we had sent packages with miphoprostone and mesoprostal to in the previous few days. So on the Wednesday, Thursday and Friday before the decision was released . And those patients hadn't received their packages yet. And so we were inundated with questions about, you know, am I gonna get my pills still? Is the post office gonna intercept my package? Can I take the miphopristone once it arrives. But the second group of patients, which is the group that we spent the most time with over that weekend, were those who had already been approved for our service, but who hadn't yet paid for the pills by the time this the Fifth Circuit's decision was released. And it's actually pretty common for our patients to request pills in the last week of the month, but then not pay for them until after the first, because that's when people get paychecks. And so over that weekend we had about 200 people who were kind of in this limbo stage. And so we were explaining, you know, what the options were for our patients that they could um wait for a week and see what happens. We could send them the mesoprostal only regimen if that's what they wanted. We could issue a refund. And then we were also trying to explain to patients that even if we weren't able to send me pristone through the mail, there would be other ways for them to get the methopristomesoprostal regimen. And then the third group of patients were the new patients who were starting the process with our service. And so we spent that weekend really building out all of our systems so that all of those patients would understand that we would send methopristone and mesoprostal if we could, but if not, we would send just the mesoprostal and that they would get instructions and information about how to use it. And when I think about what our patients have gone through over the last two weeks, you know, it makes me really sad. Why ? Well, for them, I mean, I'm somebody who's in this space. I often say I sort of live and breathe abortion. And sometimes I'm confused about what some of these decisions mean. For our patients who are maybe reading the headlines and don't really understand what's happening in the broader politics of abortion, but what they want is to be unpregnant, it makes them tremendously anxious. You know, am I going to be able to get the abortion pills that I want? Am I going to be able to be unpregnant quickly? How do I do that? Are you going to still be able to help me? And if not, what do I do ? What is this court? Why does somebody in Louisiana get to determine what I do? I don't understand. Abortion is legal in my state, or how does this affect me? Just having no idea why something that a fifth circuit court would decide on a Friday afternoon would impact their ability to have an abortion or get p pills sent to them on Monday. It sounds like you had to mitigate all this confusion. There was a lot of damage control you were trying to get done. But I feel like folks might hear what had happened and think, okay, why doesn't why don't people just take mesoprostol? Why is it a big deal to switch from a miphoprostone plus mesoprostol regimen to the misoprostol only protocol? So from the medical side, mesoprostal only or mesoprostal as a single abortifacient regimen is highly safe and effective. We have evidence-based regimens that we use. We have a lot of experience using this this regimen internationally in places where Mythipristone is not available. So from so we have this this very good alternative regimen. The regimen does um have more side effects that are associated with it because there's more mesoprostal, and mesoprostal is the drug that really has the side effects. And so we want patients. Side effects that people associate with abortion. And there's ongoing research to really look at the the efficacy or the completion rate with mesoprostal. It sounds like if you're saying that a mesoprostal only abortion is associated with more side effects, more nausea, more cramping, more bleed ing. It does sound like those are abortions that cause individuals more suffering. Right. I mean, I think of it as being less comfortable. We do know that people who use mesoprostal alone, all over the world are very satisfied with the regimen and have good outcomes. But it, you know, but we have a gold standard, and that gold standard involves mifepristone, and there's a reason for that. It makes for a more comfortable and shorter process. You know, this decision that this that the Fifth Circuit issued was in addition to being a travesty and not grounded in science, was also cruel. It was cruel because it didn't take into consideration that there were real people who were in the process of getting abortion care and that this would wreak havoc on their ability to do that and cause a lot of stress and anxiety. And it's cruel because we can pivot to another regimen. But it's a regimen that is potentially less comfortable for patients. And it's really feels like it's a way of trying to punish people for getting the abortion care they want need, and deserve. It feels like a punishment for people. From the court . It feels like the court is trying to punish people. Right. And the thing that really keeps me up at night and um is is what's happening within emergency departments in the United States right now. And everywhere in the world, with very, very rare exception, even where abortion is severely legally restricted, if a patient has a complication and gets to a hospital, they're they're given post-abortion care. And they're given that care and not turned over to authorities. They're not, you know, thrown out on the street. They're treated for whatever their medical needs are at that facility. But what's happening in the United States is that abortion patients who and pregnant people in general who are presenting at the hospital at a hospital with complications are not getting the care that is standard. And to me, that's that just continues to be shocking. If it becomes no longer possible for abortion providers to mail abortion pills, what patients what are there particular groups of patients that you're most worried about? So one of the groups of patients that I'm worried about are those patients that are experiencing intimate partner violence in all of its different forms. We just recently completed a study with the more than 3,000 patients who completed our medical questionnaire and got pills from our service in March of 2026. And 8% of our patients reported experiencing one or more forms of violence either in becoming pregnant or during the pregnancy. So, you know, not over the course of their lives, not in the last 12 months, but during the current pregnancy. And for these patients, you know, being able to get pills by mail is sometimes a lifeline. It's a way for them to extricate themselves from abusive relationships. It's a way for them to sever ties with an abusive partner. And for some of these patients who are in these um in these violent relationships, they don't have the option of being able to travel across state lines. We also know that violence is kind of co-occurs with financial precarity. I have a couple of stories from patients that I This one is from uh a twenty-three-year-old patient from Oklahoma, and she wrote to us to say, The man I'm impregnated by had assaulted me by strangulation and is being charged with d domestic abuse. I found out I was pregnant when I got rushed to the emergency d department. I want nothing to do with this man being a part of my life to be able to hurt me again. I would really greatly appreciate the help from y'all. Thank you. A 29-year-old patient from South Carolina wrote to us to say, just left a domestic violence situation with the father of all the kids. It's only been three weeks of him being in jail and I just found out. I was a stay-at-home mom for seven years and have literally just started getting all of the balls caught up and figuring out life. I have no idea how to even afford this right now, but I cannot have another. I've had extremely difficult pregnancies and end up hospitalized almost every time, and I don't have a support system to help. And so I fear that if we are unable to provide care um through our telemedicine service to patients in states with near total bans or with um severe gestational duration restrictions . It's patients like these that are not going to get the care that they need . One of the things that was most interesting to me about the ruling from the Supreme Court was actually the dissent that Justice Samuel Alito wrote. And he says that at the heart of this case over Miffer Pristone is really, quote, the perpetration of a scheme to undermine our decision in Jobs v. in Dobbs v. Jackson Women's Health Organization, which is of course the case that overturned Roe v. Wade. And what Alito is talking about is the existence of SHIELD laws, which are these laws, as you know, that have been passed in states like New York and California and Massachusetts, that seek to protect abortion providers from out-of-state prosecutions, even in cases where the providers are mailing pills across state lines into states that ban abortion. The Massachusetts Shield Law is, of course what makes the map When you saw Alito's descent, when you saw that he is when you saw that he is so skeptical of shield laws, what did you think? What did you make of that decision? I'm not a lawyer, but when I read the dissent, what immediately came to mind was that Justice Alito was providing a roadmap for anti-abortion actors, anti-abortion rights actors, um uh writing them a roadmap for how to go after shield law providers and using language that suggested that there were conspiracies and schemes that involved the pharmaceutical company, the provid ers, potentially the state, you know, other kind of advocacy groups. This current stay that's been extended of the Fifth Circuit's decision is just another step in this process. The anti-abortion rights movement is preoccupied with restricting methipristone in particular, but medication abortion more generally. And they're doing a lot of things to do that, whether that's these suits that are coming through attor neys general or the lawsuits against individual providers, whether those are criminal or civil suits. And you know, what we're seeing is the shield laws in states where individual providers have been indicted or sued, the shield laws are doing their job. The shield laws are working. We can't anticipate that this is going to happen, but really cases like this have real implications for you as a person and other providers as individuals. At least two doctors have so far been indicted for allegedly shipping abortion pills across state lines into states that ban abortion. Neither of those doctors have actually been apprehended because they're staying out of Louisiana, which is the state that indicted them . But you could be next. What kind of precautions do you take to protect yourself? Everybody who's involved with the map has done their own kind of individual risk assessment to determine what makes the most sense for, you know, each person. In my case, um, because I'm the most public-facing person involved with the map, I don't travel to or through states with near-total abortion bans or states with gestational duration restrictions. I don't drive a car outside of Massachusetts, and I fly into the country when I when I leave the U.S., I fly back through Canada. Why don't you drive a car in states outside of Massachusetts? So this is an in interesting information that I would never have thought of, but this is advice that came from lawyers. It turns out that for you know in general, for people who are law-abiding, the time when you have the most contact or the the the time at which you are at most risk of having contact with law enforcement agencies is when you drive car. Traffic violations, car accidents, witnessing a car accident, anything like that. And if you can imagine you're outside I'm outside of Massachusetts, it turns out that there's some kind of either subpoena or warrant or something that's been issued against me. I get into a car accident, somebody in another state, even a friendly state in New England, runs my name and that pops up. And so one of the things that lawyers have advised is that's another way to decrease or minimize risk is just to not put yourself in a place where you're vulnerable for getting getting pulled over if you don't go to red states, do you feel like your life has been curtailed at all? Are you missing out on things? I think the biggest thing for me is that my mom and stepdad live in South Carolina. So I'm not able to visit them in person and there and have it for over two and a half years. And that makes me sad. We see each other in other places and we made the decision as a family that this is what we wanted to do. And my husband's been really supportive of that. Um but but that um but that does make me sad. I mean I feel like what you're doing is it's kind of radical. Like it is a risk. Providing abortion can be a really dangerous business. Eleven people have been killed in anti-abortion violence. There have been hundreds of arson attacks, of bombings, of butyric acid attacks. You keep the physical location of the map itself, your offices, a secret. Do you worry at all that when abortion is back in the headlines like this, that you or the people who volunteer with the map are in actual danger? I mean, we um we certainly all think about it and have decided After the Supreme Court ruling came out on Thursday evening, Louisiana's attorneyal Gener Liz Murrell said, quote, It's shocking that the Supreme Court would block the common sense return to medically ethical practices and oversight. DOJ did not defend big pharma, which is profiting from the illegal and unethical distribution of abortion pills. We will keep fighting. What do you feel like that fight is going to look like next? Where do you think the anti-abortion movement is going to attack next? Well, I certainly think there's gonna be a sort of multi-pronged attack on medication abortion pills in general and on miphopristone in particular. But the thing that I'm watching, and again, I say this as a non-lawyer, but as someone who's been following what's going on in state legislatures, what I see in terms of anti-abortion movement rhetoric, is that I fear that there is going to be a continued push to criminalize the abortion patient. And, you know, 10 years ago, this was almost unthinkable that the anti-abortion rights movement would say out loud that a strategy for reducing the number of abortions was to put um abortion seekers or abortion patients in jail. But now we're seeing we're seeing more and more of this conversation in the press. And we're also seeing state legislatures kind of taking this up. And you know that is just that's just devastating. That's just so awful. It's only a handful of countries in the world where there are abortion bans where you know women and other pregnancy cap capable people have actually gone to jail. So it really that that is i it's upsetting that I think this is the direction. And I think part of the reason that this is the direction that at least some part of the anti-abortion rights movement is going in is because the number of abortions have actually increased since Dobbs. And even if Schillbah providers all went away tomorrow, even if my pristone by telemedicine was no longer available, people will still be able to get miprfeist one and mesoprostal. They'll be able to get that through community networks, they'll be able to get medication abortion pills through international clinics. That's not gonna go away. Yeah, I mean I can say as someone who covered abortion rights for ye ars10 , I was really struck by how in the last year, I think it was about a dozen states introduced laws that would have criminalized that would have treated abortion as homicide, which is to say women who got abortions would be treated as murderers and faced criminal consequences accordingly. And the thing is, you know, these proposals get introduced every year, but they usually I feel like draw more outrage and controvers y. And then in the last year, it was just sort of like, oh, this is maybe an increasingly normal thing to propose. Maybe it's not something that people need to get as up in arms about. And I was really struck by it seems like the normalization of this idea, which is incredibly politically unpopular, even among most of the anti-abortion movement. I agree with you. I mean, I think we're seeing some slight shifts in the Overton window, and I think this is a good example of that, where, you know, I I think back to when um when Donald Trump was running the first time and was asked on uh was asked in an interview about whether or not a woman who has an abortion should go to jail if abortion is illegal and he said yes. And it felt like the entire anti abortion rights community at that point was like, no, that's not the message. Can't say that. That's not the right thing we're pushing . It's not what we're doing. And and had to do this whole backtracking of that. And you know, that was a little that was ten years ago. Um and now I I I agree with you. It's not that these that not that fetal personhood bills have never been introduced or no one's thought about this before. But the way that they're being discussed, the fact that they're actually being debated, the fact that organiz ations are um uh anti-abortion rights movement organizations are issuing statements about them, it really does feel like there's a a bit of a shifted time . Dr. Angel Foster, thank you so much for your time. Thank you. I think some people might hear Dr. Foster talk about the idea that the anti abortion movement is going to criminalize women and think that that is a Looney Tunes take. I think it's a terrifying thing. I think that that is also a valid response. And I think that a lot of people are taking comfort in the fact that within the mainstream pro-life movement, quote unquote, that this is not a politically popular position. This is not what most people in the mainstream want to see happen. But I can say, as someone who has covered this issue for many, many years, the idea that we would criminalize women for abortions has slowly but surely started to creep into mainstream thought Do I think that this is something we're going to see anti-abortion activists embrace in the next year? No. Do I think we might start to see it in the next 10 years? Very possibly. Certainly the lesson of American history and the lesson of this modern conservative movement is believe them when they tell you something. Right. And if they're floating up ideas today, then within the next five to ten years, we're gonna start to see those things take the shape of laws. All right. So then what are the realistic, like imminent threats that you're looking at right now that makes you feel like we are at the near the end game on a having access to any abortion rights anywhere in the country. Aaron Powell Well, I think there are there are four major threats to abortion access that are imminent and that I am watching very closely. Those are the things that I wanted to talk about because I do feel like, again, if you are someone who cares about abortion rights, you need to know about these things because they can sneak up on you if you're not paying close attention. The first threat is that there are lots of lawsuits around mifepristone and around access to abortion pills. This lawsuit, the one that made its way up to the Supreme Court from the Fifth Circuit, that is going to continue. It will likely get appealed at the Fifth Circuit. It may ultimately go back to the Supreme Court for oral arguments. But there are other lawsuits that have also been filed. Most notably, there was a lawsuit filed by the Republican Attorneys General of Kansas, Missouri, and Idaho that has also asked for the FDA to limit access to MiFipristone. They even recently filed paperwork while this case at the Supreme Court was ongoing saying we want to push forward, we want to continue with this lawsuit and see what we can get. The second threat that I'm following was actually mentioned in this most recent Supreme Court ruling. There are two dissents in this case. One of them was written by Samuel Alito and the other was written by Clarence Thomas. These are two of the most hardline right-wing people on the Supreme Court, and they have a track record of sighting against abortion rights. They both, in fact, join the conservative majority in overturning Roe v. Wade. Yeah. So I wanna start, Kai, by asking you to read from Alito's Descent, if you can give me your best Samuel Alito here. Oh the things that I do for this job. I know. I am so sorry. I really, really um . So this is uh this is Samuel Alito writing, he says, quote, states, including Louisiana, made abortion illegal except in narrow circumstances. But Louisiana's efforts have been thwarted by certain medical providers, private organizations, and states that abhor laws like Louisiana's and seek to undermine their enforcement. These medical providers and private organizations have developed an operation enabling women, enabling women . Can you believe these women being enabled? Enabling women in Louisiana and other states that restrict abortions to place an online order for a pill called miphopristone that induces I am going to thank Samuel Alito for reminding us what miphopristone is, because again, it's confusing. Yes. And I will just translate what he just said, because it's dense, it's legal easy. Remember, this was a case of that was brought out Louisiana, a state that has banned virtually all abortions. In this operation, quote unquote, that Alito was talking about, he is talking about the exact kind of operations that are run by people like Dr. Angel Foster and her colleagues.. Dr Foster and I talked about this a little bit, but her work is made possible entirely by the existence of this novel legal strategy called shield laws. Right. Do you know what these are? Yeah. So these are the laws that some states, like New York, passed to say , okay, if you are providing abortion services here, we are gonna protect you from prosecution by some outside state that wants to come and grab you. Exactly. And in some of these states, including New York, including Massachusetts, including California, they have specifically said that it doesn't matter where the abortion patient is located. So if I am an abortion provider in New York City and I never leave the boundaries of my state and I mail an abortion pill to someone in say Texas, I can still be protected by the Shield Law, at least in theory, because a New York official is not going to assist Texas if they try to come after me and try to prosecute me. But Texas will certainly try to come after me you. Ian, we've already started to see it. We've already started to see many Red States getting really angry about these shield laws and trying to sue or even indict people who are allegedly shipping abortion pills across state lines into red states . And so why exactly has Alito brought this up in the course of this ruling? Aaron Powell I mean it's it's speculative, but I do think that Dr. Foster is right when she says that Al ito is trying to draw a roadmap for anti-abortion advocates who are trying to figure out how to continue to undermine shield laws. Like inviting f for future cases. Potentially, yeah. Is he maybe he's sending up some kind of smoke signal to say , hey, I'm not a huge fan of abortion, I'm not a huge fan of shield laws, bring me something that will allow me to say that in writing from the highest court in the nation. Which is what a lot of people were concerned about in Clarence Thomas's concurring opinion on i in getting rid of Roe in the first place that he was say he was inviting cases to get rid of same-sex marriage under the same kind of case law so thank you so much for bringing up Clarence Thomas. He is actually very critical to the third threat. Remember, this is a list of four possible threats. Right. This is, I would say, the biggest threat to abortion access. And specifically, Clarence Thomas brings up something called the Comstock Act. I can see what you're I can see the sigh you've just brought up, but I would like you to read what Clarence Thomas said. I'm gonna have to read Clarence Thomas on Anthony Comstock Exactly. And if you're listening, we're gonna explain this. You're gonna hear why Kai has so much consternation already in his own. This is a low point in my professional life. Okay. Clarence Thomas's opinion reads, quote, It is a criminal offense to ship mifepristone for use in abortions. The Comstock Act bans using, quote, the males to ship quote any drug for producing abortion. Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. Criminal enterpr ises. So he is saying that the applicants, which to be clear, are pharmaceutical companies that manufacture Miphapristone, he is saying that they are committing a criminal enterprise because of the Comstock Act. Kai, you know what the Comstock Act is. Do you want to do a little spiel on it? Yeah, it's this is uh an anti obscenity law going back to the eighteen seventies , um, in which Anthony Comstock, one of the most despicable people in the history of the United States. Like which, you know, that's a a rare distinction. I have to say there's been a lot of despicable people in the US history. Even in his time, no one liked him. Like none of his none of his allies didn't like him. He was uh uh this guy who collected dildos and sex toys and things. They were called rubber products in the literature of the time. He had an obsession with anything that produced pleasure, particularly for women. And he kind of was the pioneer of the idea of vice. And so this law, the Comstock Act, was a way to prosecute people who engaged in quote vice by chasing down things they sent through the mail because that lets you use federal law. Exactly. Right. Anthony Comstock loved to just run around New York City and harass people who he saw as doing obscene things. And the Comstock Act in particular banned mailing, quote, any article or thing designed or intended for procuring an abortion. Now, when Roe was an effect, this was really not something that people worried about because Roe v. Wade was the law of the land. Abortion was legal. We don't need to think about whether or not there's this obscure law from the 19th century that bans the mailing of abortion-related materials. And then Roe was overturned. And so now anti-abortion activists have taken a look at this law and said, wait, this is still on the books. Is this still good law? We think this is still good law. We think that this zombie law should be enforced. And I just want to say: if the Comstock Law was enforced, it would not just be banning the mailing of myfopristone or abortion pills. It could be used to ban all abortion in the United States. Because even abortion clinics rely on the mail, right? They receive things that they need to do their job through the mail. That's how they can get ultrasound machine equipment. That's how they can get vacuum aspirators. That's how they can get gloves. So the Comstock Act, if it came back to life, could effectively result in a de facto nationwide abortion ban. So this is what you were talking about earlier. Well, you said you think they've already got the tool to wipe out abortion period everywhere. It's this. Aaron Powell It's the Comstock Act. Exactly. Aaron Powell So I hate to ask this, Carter, but like given that the law is operable still, why hasn't the Trump administration done it yet? No, this is a great question because I have to be honest. When the Trump administration came back into power, I was prepared to be writing stories about the Comstock Act being in effect and what that would mean for the American people. Wynroe was first overturned, Joe Biden was obviously in office. He was the president, and his Department of Justice put out some guidance that basically said we are not going to be enforcing the Comstock Act except in some very narrow circumstances. The Trump administration could overturn that guidance. Would people sue over it? Probably. But they could make that call. And so the question has been: really, since Trump came back into power, why hasn't he done so? Wow. And the thing is that Trump has really tried to run away from the issue of abortion. And so it's very possible that the reason we don't see a revived Comstock Act right now today is because Trump really doesn't want to talk about this issue. Abortion rights are incredibly popular. He knows it. The Republican Party knows it. And Trump, I don't think really cares all that much about abortion. Like this is not really his top issue. He has flip-flopped on it a lot. And so I can't imagine he really wants to swing a spotlight back onto it at this time. Especially ahead of the news. Oh yeah, especially ahead of the midterms. This is not something that I think the GOP really, really wants people to be focused on right now. Trevor Burrus Nonetheless, it is the this is the thing that's out there. It exists that could in fact end abortion. Um and that is chilling to think about. So you got so so there's the cases moving through the courts. There's the shield law attack and there's Anthony Comstock's ghost. Thank you. I really appreciate the sub-up. This is helpful. But you promised me four. What's the fourth? Okay. So the fourth thing is that the Trump administration has taken kind of a baby step to limiting abortion access, and the FDA has agreed to review the safety of miphopristone. Now remember, miphopristone is safe. That is not really something that is up for debate. Nevertheless , the FDA, because it's reviewing it, could change the terms of access to Mifepristone. They could make it harder for abortion providers to mail it, they could make it harder for abortion providers to access it. We don't know what they're gonna do, and we don't know when they're gonna do it. Anti-abortion activists have actually gotten kind of mad over the FDA review because they feel like it's being slow walked. So we will see in the coming months and years if anything ultimately comes out of the FDA. Aaron Powell I mean this depends on them having a functioning FDA in the first place, which has been a challenge. Aaron Powell Yes, that is uh the question of whether or not the FDA can do anything at all right now seems to be a big one. Aaron Ross Powell So what is like the immediate next thing that you're watching? Like we've got all of this stuff that we know that's on the horizon that you're concerned about. What's like the next next thing? I mean, ultimately abortion is going to end up back at the Supreme Court in some form or fashion. We don't really know how much appetite the Supreme Court justices have for this issue, but I think it's become pretty clear since Roe fell that there are so many differences in state laws around abortions. There's so many disagreements around what states owe each other when it comes to enforcing abortion laws , that the Supreme Court is probably going to have to weigh in at some point The thing, though, that I'm really keeping an eye on is what is the anti-abortion movement doing? This is a movement that is incorre dibly motivated, right? If you believe that abortion is the killing of an innocent baby, that's a belief that's probably going to keep you extremely committed. This is a movement that spent five decades working to overturn Roe v. Wade. They base they stacked state legislatures with Republicans. They helped create the modern day conservative majority on the Supreme Court. They are very powerful and they are very, very committed. I think at this point it's pretty clear that the modern day anti abortion movement is an undemocratic one because they believe something that is not popular with the majority of Americans. It is a minority that is now trying to enforce its rule on the rest of the country. And it seems like the best way for them to do that will likely lie through the nine unelected justices on the Supreme Court. They're not going to stop. There are going to be more court cases. And this movement is going to try very hard to convince the Trump administration or whatever Republican administration comes next to enforce the Comstock Act and to enact that nationwide abortion ban. This is not the time for people to stop paying attention to abortion rights. This is States ide. If you've got follow-ups, questions, thoughts, send us an email or a voice memo to StatesidePod at thegardian.com. Follow us on all platforms at Stateside Podcasts. Look out for new episodes every Monday, Wednesday, and Friday. This episode was produced by Suzanne Gabber and Monica Espitia, and edited by Rachel Humphries. Our engineer is Ivan Karaev. Our social media producer is Russell Cogan, and I'm Carter Sherman. Thanks for spending time with us . This is the Guardian.