Anti-abortion groups are looking for new ways to wage their battle against abortion rights, eyeing the potential implications of a 150-year-old law, the Comstock Act, that could effectively lead to a nationwide abortion ban.
Congress passed the Comstock Act in 1873, making it a crime to mail or ship any “lewd, lascivious, indecent, filthy or vile article” and anything that “is advertised or described in a manner … for producing abortion.”
There are now legal cases questioning the Food and Drug Administration’s regulation of mifepristone, one of the two drugs used in the standard regimen for medication abortion. If courts find that the FDA has the authority to approve mifepristone for abortion, the Comstock Act could still prevent the pill’s distribution.
As scholars of law and reproductive justice, we have been analyzing potential strategies to use this Victorian-era law to restrict the ability to get an abortion in the U.S.
Read one way, the Comstock Act could prevent mailing mifepristone to a person’s home, regardless of whether this person lives in a state where abortion is legal.
The Supreme Court returned the question of abortion rights to states in June 2022. But it’s important to understand that the Comstock Act is a federal law that applies to states, regardless of their approach to abortion.
So while abortion remains legal in certain states, we believe it’s possible that a court could interpret the Comstock Act to prevent the distribution of any tool used for an abortion, anywhere in the U.S.
The history of the Comstock Act
Devout Christian and self-described “moral evangelist” Anthony Comstock came up with the idea of what would become the Comstock Act after he felt troubled by the large amount of pornography and alcohol his fellow Union army soldiers consumed.
He lobbied for Congress to pass a law restricting what he deemed lewd behavior, displaying “his impressive collection of pornographic pictures, sex toys and contraceptive materials” in the Capitol building “to help galvanize Congress to pass anti-obscenity legislation.”
And, in 2022, the Justice Department issued an opinion concluding that the Comstock Act does not prohibit mailing mifepristone if the sender doesn’t know the recipient intends to use those pills “illegally” for abortions – for example, the recipient might be using them to treat a miscarriage.
Applying the Comstock Act today
As anti-abortion rights groups try to reinvigorate the Comstock Act, the question is what the law covers, exactly. Several legal cases are addressing this point in different contexts.
When that decision was appealed, the appellate court seemed to agree with Kacsmaryk. It noted that the law does not necessarily require users “of the mails or common interstate carriage to intend that an abortion actually occur,” contrary to the Justice Department’s 2022 opinion. It emphasized, however, that it was “not required to definitively interpret the Comstock Act” because it was not issuing a final ruling.
Since 2019, two counties and more than 60 cities in Texas, Nebraska, Iowa, Ohio, New Mexico, Louisiana and Illinois have passed ordinances that ban abortion. This is part of a political campaign called Sanctuary Cities for the Unborn – orchestrated by Mitchell and conservative pastor Mark Lee Dickson.
These ordinances have led to two lawsuits questioning their legal status.
New Mexico Attorney General Raúl Torrez sued several Sanctuary City towns in January 2023, claiming that the ordinances violated state law that says people have the right to access health care and that physicans’ care of patients is a private matter.
Finally, the Comstock Act is being applied even after an abortion has occurred.
In a Texas lawsuit filed in March 2023, Texas resident Marcus Silva sued three women for wrongful death, saying they assisted in “murdering Ms. Silva’s unborn child with illegally obtained abortion pills.” The complaint notes that Silva will also sue the pills’ manufacturer for wrongful death based on the Comstock Act.
Mailing, distributing or banning?
It seems likely that the high-profile federal FDA mifepristone case in Texas could head back to the Supreme Court after the 5th Circuit issues its ruling. If so, the Supreme Court could determine that the Comstock Act only applies to the mailing of items if the sender knows the items are intended to be used “illegally” for abortions. In that case, little or nothing would change in states where abortion is legal.
Or, the court could decide that the Comstock Act bars mailing mifepristone regardless of its user’s intent, making access to medication abortion more difficult. The court could also cast a wider net, prohibiting the shipping of abortion medication altogether across the U.S.
And if the Comstock Act applies to mifepristone, it could also apply to any other item or tool that is used to terminate a pregnancy. Such a ruling would effectively impose a nationwide ban on abortion, even in states that allow abortions. To achieve this result based on an 1873 Victorian statute would be entirely consistent with Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade based on the state of the law in 1868.
The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
The current crisis in the Middle East is one that officials in Oman have spent years trying to avoid. Located across the Strait of Hormuz from Iran, and with close defense and security ties to the U.S. and the U.K., Oman is aware that tit-for-tat attacks raise the risk of a broader war that would engulf countries and armed nonstate groups across the region.
It could now play a crucial role in keeping a channel of communication open between the U.S. and Iran as parties seek to tamp down tensions.
Standing apart from regional rivalries
Along with neighboring Qatar and Kuwait – as well as Switzerland, which represents U.S. interests in Iran in the absence of an American embassy – Oman has played a critical role in back-channel diplomacy.
But Oman’s approach is distinct from that of other nations. Rather than participating in direct talks, it creates space for dialogue, serving as a facilitator rather than a mediator.
Multiple reasons account for the Omani decision to act as a facilitator. Unlike several of the other Gulf states, such as Saudi Arabia and the United Arab Emirates, Oman lacks a history of tense relations with Iran.
Rather, Omanis recall that Iran under the shah provided support to Oman during the 1970s when the Gulf state’s then young new sultan, Qaboos bin Said, was fighting a decadelong uprising in the southern province of Dhofar.
Even after the shah was ousted in the 1979 Iranian revolution and replaced by a clerical regime headed by Ayatollah Khomeini, Oman stood apart from others in the region and declined to get involved in regional rivalries and competition for geopolitical influence that marred Iran’s ties with other Gulf states.
Secret back channels
Representing a small state in a volatile region, Omani officials have created diplomatic spaces that permit them to engage with regional issues on their own terms and in ways that play to their strengths. As Sayyid Badr Albusaidi, a career diplomat who became the Omani foreign minister in 2020, noted back in 2003, “We try to make use of our intermediate position between larger powers to reduce the potential for conflict in our immediate neighborhood.”
Unlike Qatar, which has attracted worldwide attention over its role as a mediator in Hamas-Israel negotiations, Oman engages less in mediation and more in facilitation.
This is an important distinction and one the Omanis have maintained in regards to engaging with U.S. and Iranian officials, as well as Saudi and Houthi representatives during the decade-long Yemeni civil war.
Omani facilitation takes varied forms. It can consist of passing messages and maintaining indirect channels of communication between adversaries or arranging back channels and hosting discreet meetings.
There is little of the publicity seen in Qatar’s mediation initiatives, such as the talks with the Taliban that produced the 2020 Doha Agreement for the withdrawal of U.S. forces from Afghanistan.
But Oman’s approach can nonetheless yield results. In his memoir, “The Back Channel,” written after his retirement from the State Department and before his appointment as President Joe Biden’s director of the CIA, William Burns provided a detailed account of the Omani role in facilitating the back channel between U.S. and Iranian officials in 2013 that evolved into negotiations that produced the the Iran nuclear deal of 2015.
That back channel began after Iranian officials passed a message through Oman to the U.S. in 2012 suggesting a meeting in Muscat, the Gulf state’s capital.
Burns recalled that the head of Omani intelligence “greeted both delegations as we walked into the meeting room” and “offered a few brief words of welcome and then departed.”
The back channel remained secret throughout eight rounds of generally constructive dialogue that marked the longest and most sustained engagement between Iranian and U.S. officials since 1979.
Hosting adversaries
While the thaw between the U.S. and Iran didn’t last, the Omani back channel highlighted several factors key to the success of any attempt to dial down tensions between seemingly implacable adversaries.
The trust both sides had in Omani officials was critical, and the positive outcome of the meetings built confidence in each side’s use of Omani channels.
Oman’s role as a facilitator of indirect engagement between the U.S. and Iran assumed added importance with President Donald Trump’s decision to withdraw the U.S. from the Iran nuclear deal in 2018 and the failure of the Biden administration to reenter the agreement.
Seemingly the only time Oman has not been willing to serve this role – when tensions soared after the U.S. killing of Iranian Gen. Qassim Soleimani in January 2020 – was because Sultan Qaboos was critically ill. In Oman’s absence, the Swiss led the back channel.
Tamping down tensions
During the heightened tensions since the Oct. 7 attack in Israel, Oman has passed on messages between Iranian and U.S. officials. In January 2024, Omani officials hosted delegations of senior negotiators from both countries, shuttling between the representatives in separate rooms.
Even as a wider regional conflict loomed in the Middle East after Israel presumably bombed an Iranian embassy compound in Damascus on April 1, Oman was on hand to try to tamp down tensions.
On April 7, Iran’s foreign minister, Hossein Amirabdollahian, visited Oman – providing an opportunity for Omani officials to debrief the U.S. and other Western officials on Iran’s thinking as Tehran planned its response to the Damascus attack.
And while the current crisis in the Middle East is of a magnitude that Oman alone cannot address, the ability of trusted intermediaries such as Oman – along with Qatar and Switzerland – to keep open channels of communication is crucial to minimizing the possibility of any accidental escalation on the Iranian side, and to complementing U.S. and European dialogue with Israeli leaders in the quest to find a peaceful resolution to the standoff.
Kristian Coates Ulrichsen does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
The 37-year-old Harris takes the helm of a country very much at the crossroads of change. Local, national and presidential elections are all on the horizon, with the outcomes potentially determining the form that Irish democracy – and quite possibly unity in an island partitioned between a British-ruled north and an Irish republic in the south – will take.
Underlying these decisions is the question of how Irish voters will respond to the challenge of what is being called the “New Ireland” – a country in which approximately 20% of the population was not born in the republic, with a similar number identifying as nonwhite Irish.
Moreover, change has taken place in a relatively short space of time and has had a significant impact on the republic’s current population of just above 5 million.
In 2023, 141,600 people immigrated to Ireland, representing a 15-year high. The majority are returning Irish nationals, many from the United Kingdom, encouraged by Ireland’s buoyant economy and ties to the European Union. But there are also a sizable number of Ukrainian refugees. A smaller number come from India, Brazil or Africa, the latter including refugees from the main conflict zones of Eritrea, Sudan, Somalia and the Democratic Republic of Congo.
The record levels of immigration, coming at a time of a severe housing shortage in Ireland, has led to a backlash that boiled over on Nov. 23, 2023. Triggered by the stabbing of three young children and their care assistant in the center of Dublin by an immigrant of Algerian origin, a mob unleashed looting, arson and vandalism on the streets of Dublin. The Garda (police) commissioner blamed the events on a “lunatic, hooligan faction driven by a far-right ideology.”
To counter growing tensions, Harris has said he intends to pursue a “more planned and sustainable” immigration policy.
But familiarity with Ireland’s history may offer a counterpoint to the Ireland-is-full viewpoint, which has little to do with traditional Irish values regarding hospitality. Rather, such views run counter to Brehon law – the customs and laws that governed Irish society before the coming of the English in the 12th century.
The Brehon laws were a remarkable body of progressive codes that regulated all aspects of society, from beekeeping to homicide. Their exact origins are unknown, but for several centuries they were passed on orally from one generation to the next.
In the seventh century, the laws were written down for the first time, usually by Christian monks – the preservers of much ancient Celtic culture.
Welcome, stranger
Restitution – or restorative justice – rather than punishment lay at the heart of the laws. Consequently, there was no capital punishment or prisons but a scale of penalties or fines for all transgressions, which were proportionate to the severity of the crime and the financial means of the perpetrator.
On the topic of hospitality, the Brehon laws were unequivocal: All households, from royal residences to the poorest of homes, were obliged to provide some measure of “oigidecht” – or hospitality – to travelers, even if they were unknown. In old Irish, the word oigi meant “stranger.”
The hospitality included food and drink, and even entertainment, although the level of each depended on the social status of the household. No monetary payment was expected, although the visitor could offer a poem or a song to his hosts.
Refusal to abide by these rules could result in ostracization or a fine.
The arrival of the English, and with them English common law, eroded the use of the Brehon laws, although they did not completely disappear until the 17th century.
Today, the name survives in U.S. cities through the existence of Brehon law societies, which place human rights at the heart of legal interventions.
Opening arms
It is the spirit of Brehon that I believe best represents Irish society today. Despite the outpouring of xenophobia in November and the emergence of anti-immigration politics, the majority of Irish people are still known for their hospitality to strangers.
And it has long given a warm welcome to nonwhite visitors, from African-born Olaudah Equiano in the 1790s to American abolitionist Frederick Douglass in the 1840s to U.S. actor and activist Paul Robeson in the 1930s – each of whom regarded their time in Ireland as some of their happiest.
Douglass, then a fugitive slave, was struck by “the total absence of all manifestations of prejudice against me, on account of my color”.
It is a reputation that has paid dividends, too. Irish tourism remains robust, generating over 5.3 billion euros in revenue (approximately US$5.7 billion) in 2023, making it the country’s major native industry and the largest regional employer.
An integral part of the promotion of Ireland as a tourist destination is the concept of visiting “Ireland of the Welcomes,” where the time-honored greeting is “Céad Míle Fáilte,” which translates as “a hundred thousand welcomes.”
As Ireland – and its new, young leader – responds to the challenges of becoming a more diverse society, the Brehon laws may serve as a guide for Irish seeking a return to traditional values grounded in hospitality and inclusivity, delivering a new Ireland in which both tourists and immigrants are given “a hundred thousand welcomes.”
Christine Kinealy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
In August 1982, Ronald Reagan’s father-in-law was dying. Nancy Reagan’s beloved dad, Loyal Davis, was an atheist – a troubling fact to the 40th president. So Reagan penned a private, handwritten note in which he recounted how the prayers of colleagues and friends had cured him of a painful stomach ulcer.
Giving hope for what lay beyond, Reagan entreated the older man, “We’ve been promised this is only a part of life and that a greater life, a greater glory awaits us … and all that is required is that you believe and tell God you put yourself in his hands.”
In recent years, Donald Trump, another former president and the current Republican presidential candidate, has often spoken about his faith, posing for photo ops with right-wing preachers and praising his “favorite book” – the Bible.
The latest such demonstration was a video in which Trump promoted sales of a pricey US$59.99 version of the Bible. “Let’s make America pray again,” he urged viewers. “As we lead into Good Friday and Easter, I encourage you to get a copy of the God Bless the USA Bible.”
While Reagan and Trump – two of the most media-savvy Republican presidents – used religion to advance their political visions, their messages and missions are starkly different.
Why religion plays a part in politics
In my book, I explain that underlying American politics is a religious vision that links citizens to civic values. The most prevalent vision is that God blessed America and tasked its citizens with spreading freedom and democracy. It’s an idea that has undergirded Americans’ patriotism and inspired American domestic and foreign policies for decades.
Reagan telegraphed belief in a God-blessed America by describing the United States as “a shining city on a hill.” Reagan flipped the original meaning of a Biblical phrase from a 17th century Puritan sermon. In Matthew 5:14, Jesus warns that the world will judge whether or not his disciples, a symbolic city on a hill, stick to their ideals. By adding “shining,” Reagan sanctified American exceptionalism and the United States’ role as a global model of freedom.
Once elected, Reagan sought practical ways to apply his faith in freedom, which, like many evangelicals, he believed came from God. By cutting taxes, ending industry regulations and privatizing government functions, he hoped to give individuals more economic and political freedom.
Reagan’s love of freedom also fueled his hostility to the Soviet Union. He labeled its communist government “an evil empire,” because it denied its citizens freedom. Casting a geopolitical stance as a cosmic battle between good and evil, Reagan made defeating communism a religious calling.
I argue that Reagan’s evangelical vision was mainstreamed through the media, which reported his interviews and public statements. This vision was not always apparent, but Americans liked his policies even if they missed their religious dimension. In other words, when Reagan proposed allowing the free market to determine the economy, limiting federal power and standing up for democracy worldwide, one didn’t need to be an evangelical to agree.
A new religious vision
Trump saw an opening for a new kind of religiously tinged politics when he ran for president in 2016. But unlike Reagan’s vision of spreading freedom and democracy here and abroad, Trump’s vision sticks closer to home.
I would argue that Trump’s religious vision is rooted in white Christian nationalism, the belief that the white Christians who founded America hoped to spread Protestant beliefs and ideals. According to white Christian nationalists, the founders also wanted to limit the influence of non-Christian immigrants and enslaved Africans.
Likewise, Trump’s rhetoric, mainstreamed by the media, portrays “real” Americans as white Christians. Many of these are men and women fearful that secularists and religious, racial and ethnic minorities want to replace, if not eliminate, them.
When confronted with his financial misconduct, sexual crimes and outrageous lies, backers say that God works through flawed men. And evidence of that work – the U.S. Supreme Court overturning abortion rights, building the border wall and moving the U.S. embassy in Israel from Tel Aviv to Jerusalem – has won him their support.
Trump’s mainstreaming of white Christian nationalism is evident in his latest scheme. The God Bless the USA Bible sports an American flag on its cover. Included with scripture is the Constitution, Bill of Rights, Pledge of Allegiance and the handwritten lyrics to singer Lee Greenwood’s “God Bless the U.S.A.” A portion of the sales will benefit Trump’s organization.
Christianity and nationalism hand in hand
Trump rejects America’s role as the “shining city on a hill” and its mission to spread freedom and democracy. His goal is to restore what he calls the “founding fathers’ vision.” It’s a vision shared by Americans who think the U.S. was founded as a Christian nation, despite proof to the contrary.
Religion can be a force for good or ill. Reagan believed that his religious vision would promote individual freedom and spread democracy worldwide. Americans may agree or disagree on whether he was successful and at what cost.
Diane Winston does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.