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Caught in the heaviest crossfire are companies like Walgreens that can distribute abortion medication. In February nearly two dozen Republican attorneys general, some representing states where abortion remains effectively legal, threatened Walgreens with legal action if it began distributing the drug.
The argument by the attorneys general relies on the federal Comstock Act passed in 1873, which barred the mailing of obscene literature, birth control and drugs or devices used for abortion. The attorneys general are embracing a literal interpretation, pointing to the part of the Comstock Act that says it bars the mailing of any drug that will “be used or applied for producing abortion.”
The Biden administration’s Office of Legal Counsel rejects this interpretation, noting that the Comstock Act doesn’t apply to mailing abortion drugs when the sender has no reason to believe they will be used unlawfully. But the attorneys general warned Walgreens that a future U.S. attorney general will most almost certainly agree with their reading of the act. And the attorneys general argue that federal judges would probably back up federal prosecutors, adopting an interpretation of the Comstock Act that would put corporations in jeopardy.
All these skirmishes are occurring at a time when Americans’ support of abortion rights has never been clearer: According to Gallup, the number of Americans who identify as “pro-choice” is at a near-record high, and the percentage of those who think abortion should be legal under all or most circumstances rose from 45 to 53 percent from 2021 to 2022. The 2022 midterm results validated the argument that abortion access really matters. The number of younger voters at the polls surged in the midterms, and they made a difference in key state and national races. After Dobbs, pollsters found that record numbers of Americans were dissatisfied with abortion bans, with 46 percent wanting less strict laws around the procedure.
Regardless of how Americans feel, Republican tactics seem to be working. As was the case in the 2022 elections, it will likely be up to younger Americans to decide whether that gamble backfires. Either way, the corporate culture wars are just beginning, and if Walgreens is any indication, Republicans might have the upper hand.
Mary Ziegler is a law professor at the University of California, Davis. Her latest book is “Roe: The History of a National Obsession.”
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Mary Ziegler
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