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- A federal appeals court discussed an obscure, 150-year-old morality law in its decision on abortion medication mifepristone.
- A challenge to the legality of sending abortion medications via mail referenced the Comstock Act of 1873.
- A law professor called the legislation an outdated "zombie law" that was now in danger of being "selectively enforced."
An obscure, 150-year-old morality law that one law professor called "zombie" legislation has resurfaced in the legal battle over abortion medication.
The Fifth US Circuit Court of Appeals released a decision on Wednesday upholding the FDA's approval of the abortion pill mifepristone. But the court ruled that the pill cannot be sent via mail and that patients must get a prescription from a doctor in person.
The court's 42-page decision discussed the Comstock Act of 1873, which challengers of abortion said should be interpreted to ban abortion pills from being sent through the mail.
The Comstock Act was named after Anthony Comstock, a moral crusader in 19th-century America, according to Middle Tennessee State University's First Amendment Encyclopedia.
The law banned the distribution of "obscene, lewd, lascivious, indecent, filthy or vile" materials through the mail.
And "obscene" materials included not only depictions of sexuality or nudity, but also pamphlets educating women about contraception, as well as medical tools and drugs that helped women have abortions.
Melissa Murray, an NYU law professor who specializes in constitutional law and reproductive rights, told Insider that the Comstock Act was originally written as a morality law aimed at addressing the country's "moral failures" by steering citizens away from the "path to moral degradation."
Murray says the law was created in a climate where there was a growing fear that the US was "becoming a less American nation, in large part because immigrants [were] reproducing at far greater rates than their native white counterparts."
And Comstock, Murray explained, launched this morality campaign in the interest of "prompting white women to be mothers, and actually compelling them to be mothers by taking away the various technologies that would enable them to control that decision for themselves."
A 'zombie law' that should've been repealed
Murray says invoking this "zombie law" is "rolling back modernity."
"The law hasn't been enforced by the federal government since the 1930s," Murray said. "That tells you sort of where it has been. And I think most people assumed that it was sort of permanently in a state of [destitution], not likely to be enforced. But, of course, it was never repealed."
Murray said that the Comstock Act is being "selectively enforced" to argue only against abortion access because, for example, the law also bans the distribution of pornographic pamphlets.
No one has attempted to use the old law to prohibit modern lewd magazines, like Playboy.
"I hope people in Congress will take seriously the view that the Comstock Act was sort of a dead letter that needed to be repealed," Murray said, "So that it couldn't be this kind of zombie law that could be resuscitated whenever someone decided it was appropriate to do so."
The federal appeals court ruling will almost certainly be taken up by the US Supreme Court, where conservative justices — who previously wiped out a nationwide right to abortion last year — will hear the case.