Zombie movies are popular because they tap into a near-universal fear that what was once dead and buried can come back to life to haunt us. A federal district court judge’s decision to resurrect discredited legal theories and revive a 1873 law in order to block use of a so-called abortion pill will do just that.
The decision resuscitates a “zombie law” from the 1870s, the Comstock Act, which hasn’t been used for nearly a century. The legal equivalent of a zombie flick, the act essentially resurrects baseless arguments and once-dead law to wreak havoc on our settled legal principles. And the real horror is the damage that could be done to women’s ability to obtain safe, reliable and life-saving reproductive care.
Late last week Texas Judge Matthew Kacsmaryk granted anti-abortion activists a nationwide preliminary injunction, invalidating the Food and Drug Administration’s approval of the prescription and use of mifepristone, one of the two drugs prescribed for women to obtain medication abortions. More than half of abortions in this country are medication abortions.
Kacsmaryk put his ruling on hold while the Department of Justice appeals the case to the 5th Circuit Court of Appeals. But the danger unleashed by his 67-page opinion could remain.
Kacsmaryk’s decision is riddled with legal and factual errors. To name just a few: First, Kacsmaryk changed the legal definition of standing. Standing is a legal doctrine that requires that plaintiffs who sue in federal court have suffered a concrete and particularized injury or actual and imminent harm that was caused by the action they’re complaining about, and which can be remedied by a favorable judicial ruling. Kacsmaryk concluded that the doctors who sued had standing to do so on the theory that they might have to treat a woman who was given mifepristone by a different health care provider and suffered side effects. This would, it is worth noting, essentially allow doctors to sue to invalidate FDA approval of nearly any drug.
Kacsmaryk also concluded that medical associations, instead of women allegedly harmed by mifepristone (none of whom joined in this suit), had standing to sue because those women could have suffered a “deeply traumatizing” experience that would “pose a hindrance to a woman’s ability to bring suit.” Women, according to Kacsmaryk, apparently cannot be trusted to have the fortitude to bring our own lawsuits. Similarly, we cannot be trusted with our own reproductive choices. But presumably we can be trusted to be parents.
It is worth taking a moment to think about how truly baseless Kacsmaryk’s analysis of the standing requirement is here. Not because it is fun to point and jeer, but because this could provide the Supreme Court with a safety hatch to avoid getting to the merits of this case. Even this conservative court may want to avoid the legal and political consequences that would flow from upholding this case.
Let’s remember how disruptive it would be to set the precedent of allowing a single federal judge to undermine the FDA’s approval of medications, not just mifepristone. Concluding that the plaintiffs here lack standing would allow the high court to avoid that messiness. It also has the added benefit of being the legally correct outcome.
Second, Kacsmaryk adopted the plaintiff’s groundless claim that the FDA failed to follow the proper procedures and assure that mifepristone is safe when it granted approval to mifepristone almost a quarter century ago, in 2000. Among other things, Kacsmaryk ignored data that taking mifepristone is safer than taking Tylenol.
Third, in referring to fetuses, the judge adopted the term “unborn human” or “unborn child.” This judicial sleight of hand paves the way for something called “fetal personhood,” which would give fetuses the same constitutional rights as people. In short, if we adopt the concept of fetal personhood, abortion would be considered murder.
But fourth, the pièce de résistance of Kacsmaryk’s ruling is his resurrection of the Comstock Act. The act originally criminalized the sending of “obscene, lewd or lascivious,” “immoral” or “indecent” publications through the mail. This included materials concerning both contraception and abortion. Eventually, in 1971, Congress deleted references to contraception from the act.
The act has stood dormant and unused since the 1930s. Many thought we buried the Comstock Act in 1973, when the Supreme Court concluded in Roe v. Wade that there was a constitutionally protected right to obtain an abortion. But just like our revival of anti-abortion laws in the wake of the court’s decision to overturn Roe, everything that is old is new again.
Two years ago the FDA opted to permanently allow patients to obtain mifepristone through the mail. And this is where we stumble across the corpse-like Comstock Act. For almost a century, judges (or at least judges other than Kacsmaryk) have understood the Comstock Act to apply only to illegal abortions. But Kacsmaryk brought the Comstock Act back to life, and found that it bars the sending of mifepristone through the mail.
The use of the Comstock Act is about more than mifepristone. Nearly all things used in abortion clinics, or even by abortion providers who provide virtual care, have at some point been sent through the mail. Taken to its logical conclusion, the reasoning behind Kacsmaryk’s opinion could lead to a nationwide ban on abortion. And this is almost certainly the point.
Zombie movies often end with either total destruction or the promise of a threatening and uncertain future in which the zombies roam among us. We’ve officially embarked on the second option.