Source: OTHERWISE: Abortion Politics and the Rise of Movement Jurists – Tsai and Ziegler – UCLA
When judicial decisions change dramatically we as a profession celebrate rule of law – that we will abide by the law, despite our contrary preferences, when it is reached by processes that deserve the name law.
But the rise of “movement judges”, as Robert Tsai and Mary Ziegler report, has left us with a supermajority on the highest court that has renounced many conclusions their predecessors reached over the past seventy years, and which millions have embraced as fundamental reassurance of their autonomy and security.
In Bruen the supermajority has virtually read out of relevance the conclusions and practices judges and legislatures reached in the preceding century re limiting access to firearms. New York’s Sullivan Act – stricken in Bruen – had since 1911 required that a permit to carry be obtained – with a showing of need.
In Dobbs the court vacated a half century of settled law. Assertedly returning the matter of abortion to the voters of the states which are free to choose their own path. But there are still plenty of opportunities for the court to effectively bar abortion as an option. The Comstock Act on its face bars abortifacient drugs from the mails, and from common carriers. The OLC urges that only shipment to places where the use is lawful is permitted,
But as Mary Ziegler pointed out in the New York Times on February 19 the repeatedly amended 1873 Comstock Act poses an obstacle to elective abortion that requires no legislation – only prosecutorial willingness to deploy it. Ziegler notes that “it doesn’t have any exceptions – it applies at conception. It’s any abortion, full stop.” The Fifth Circuit Court of Appeals while modestly narrowing Judge Kacsmaryk’s order observes that the Comstock may bar abortifacient medicines from the mails,from common carriers.
the [Comstock] Act requires that the defendant “knowingly uses the mails for the mailing” of anything declared by the Act “to be nonmailable.” 18 U.S.C. § 1461. A defendant could satisfy this mens rea requirement by mailing mifepristone and knowing it is for producing abortion. The statute does not require anything more.
In March the issue will be back in the Justices’ laps when they hear the Alliance for Hippocratic Medicine cases regarding Mefistoprole, the first of the two drug abortion protocol which is now the method by which most abortions are effected.
Professional Responsibility: A Contemporary Approach 