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The Comstock Act is no solution for pro-lifers or the FDA’s bureaucratic rot
Tiana Lowe
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In a Friday afternoon news dump, Judge Matthew Kacsmaryk struck down the Food and Drug Administration‘s approval of mifepristone more than 20 years ago. Although a separate judge tried to oppose Kacsmaryk’s ruling, the FDA’s approval will inevitably face the highest court in the land. While some conservatives may laud Kacsmaryk for bringing the legality of the primary abortion pill to the Supreme Court, the bench might not save conservatives from creating actual abortion laws or save the Food and Drug Administration from itself.
While this argument will focus on the practical flaws of the suit brought by the plaintiffs, it’s worth noting that one of the linchpins of the legal argument, the Comstock Act, was passed a century and a half ago, overturned before the passage of Roe v. Wade, and was not enforced by the federal government throughout the decades in between.
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For starters, the Supreme Court may not just refuse to side with the plaintiffs, which include the Alliance for Hippocratic Medicine and the Catholic Medical Association. The Supreme Court may disagree with the central contention of Kacsmaryk that the plaintiffs even have standing, which currently requires that plaintiffs have “concrete, particularized, and actual or imminent” harm to succeed in suing.
If the Supreme Court does agree the “system[ic]” argument backs the standing of the plaintiffs, there’s little indication that the Republican appointees to the bench are eager to agree with the central argument. While Justice Clarence Thomas boasted that the bench should reconsider settled cases such as Griswold v. Connecticut, no other justices concurred. Although Amy Coney Barrett, like the rest of the GOP-appointed justices, refused to endorse or decry Griswold, she did assert during her confirmation hearings that it is “very, very, very, very, very, very unlikely to go anywhere.” Furthermore, a law of no contention among the bench, the Postal Reorganization Act of 1970, arguably repealed the Comstock Act entirely by removing the remaining provisions of Comstock on the Postal Service, which was turned into an independent federal agency.
The other half of the Comstock dilemma is that the FDA’s crisis, one made obvious to Republicans since the start of COVID, is that it moves too slowly and too carefully for a body that has a monopoly on pharmaceutical innovation and food imports approval. Take two of the most illustrative examples in recent years: the shortage of COVID tests that began in 2020 and the baby food shortage of 2022.
Recall at the start of the pandemic, the FDA, already slower than molasses in its initial approval of COVID tests, demanded that the Centers for Disease Control and Prevention retest every positive test to confirm accuracy. The FDA would go on to “deprioritize” later applications for peer-reviewed tests despite continued heightened demand. The result was Abbott Laboratories consolidating three-quarters of the market by the end of the second year of the pandemic.
The baby formula shortage reflected a similar blend of the FDA’s bureaucratic incompetence and restrictive impulses. Despite first receiving the first whistleblower warning about a bacteria outbreak in a baby formula factory in October 2021, the FDA failed to investigate the matter until four months later. Consider that the factory in question belonged to Abbott, whose Similac brand comprises 40% of domestic baby formula sales. And why was the baby formula market so concentrated in the first place? Not only because of the FDA’s restrictions on domestic production but also because of its ban on European imports with the name nutritional standards.
The FDA’s independence, like most of the federal bureaucracy, has become antithetical to the intentions of the nation’s founders, and the originalist half of the Supreme Court absolutely should call into question Chevron deference and other hogwash defenses for executive agencies existing outside of the purview of Congress and the assent of the governed. But using Comstock misses the mark, in terms of a plausible victory for pro-lifers, and the meaning of the very real problem plaguing the FDA.