A second act for Comstock

Apr 04, 2024

With Megan Messerly and Rory O’Neill

Driving The Day

Sen. Tina Smith arrives to a news conference in Washington, D.C.

Minnesota Sen. Tina Smith plans to introduce legislation to overturn the Comstock Act. | Anna Moneymaker/Getty Images

BACK TO THE FUTURE — Democrats are concerned about an 1873 law they fear will be used by a conservative White House to implement a national abortion ban, Chelsea and Megan report.

Minnesota Sen. Tina Smith wants to repeal the Comstock Act, telling Pulse “it shouldn’t be considered at all” when it comes to abortion access.

She plans to introduce legislation to overturn the law but not until the Supreme Court rules on a case challenging 2016 and 2021 FDA policies that expanded access to the abortion pill mifepristone, she told Pulse.

Even so, any legislation faces dim prospects for getting the 60 votes it needs in the Senate to be repealed.

“Right now, we don’t have the votes in the U.S. Senate to protect reproductive freedom,” said Smith, who earlier this week wrote about her plans in an op-ed.

Here’s what to know about the Comstock Act:

What is the Comstock Act? It’s a set of federal laws passed in 1873 to ban mail delivery of “lewd or lascivious material,” including contraceptives and drugs used for abortion. However, a Supreme Court ruling in the 1960s rejected restrictions on birth control, and Congress later removed the provisions altogether.

Why is it coming back up? A coalition of conservative groups, led by the Heritage Foundation, has outlined ways a potential second Trump administration could restrict abortion access. While the groups don’t specifically name the Comstock Act, they’ve called for enforcement of “long-standing federal laws that prohibit the mailing and interstate carriage of abortion drugs.”

What do abortion-rights advocates say? They argue that Comstock could be used to effectively create a national abortion ban. Justices Samuel Alito and Clarence Thomas brought up Comstock during last week’s oral arguments before the Supreme Court in the mifepristone case.

“That’s just two justices, but it matters,” said Greer Donley, associate professor of law at the University of Pittsburgh School of Law.

How could Comstock be used? Donley said that, under a second Trump administration, the Comstock Act could be used to prosecute providers or anyone sending abortion pills across state lines. Such a move would almost certainly be challenged by abortion-rights groups and eventually make its way up to the Supreme Court, she said.

At least one Trump ally — former Trump administration official Roger Severino — is pushing back on arguments that Comstock enforcement would equate to an all-out abortion ban.

Misoprostol, the other pill in the two-drug medication abortion regimen, can be used on its own to terminate pregnancies — but it also has other non-abortion medical uses. Severino believes the Comstock Act wouldn’t apply to drugs, like misoprostol, or supplies not exclusively used to perform abortions.

“That’s my reading of the law, and I’m a pro-lifer,” Severino, vice president of domestic policy at the Heritage Foundation, told Pulse. “These sorts of things that the left is saying a future President Trump would do can’t actually be done without additional legislation.”

WELCOME TO THURSDAY PULSE. One of the country’s largest egg producers is pausing operations at one of its Texas facilities after avian flu was detected in chickens. Send your tips, scoops and feedback to ccirruzzo@politico.com and bleonard@politico.com and follow along @ChelseaCirruzzo and @_BenLeonard_.

Drug Pricing

Former President Donald Trump departs Trump Tower in New York.

If reelected, former President Donald Trump could bring back the most favored nations drug pricing plan. | Julia Nikhinson/AP

MOST FAVORED NATIONS COMEBACK — A contentious drug pricing policy halted in 2020 could make a comeback if former President Donald Trump returns to the White House, POLITICO’s David Lim reports.

The “most favored nations” drug pricing plan would require Medicare to pay no more than what other developed countries pay for the top 50 drugs that doctors administer to patients, such as cancer drug infusions.

Joe Grogan, the former president’s domestic policy adviser, says the Trump team has had time to figure out how to legally insulate the policy in a Trump second term.

Trump has signaled he is ready to go for it, and Trump campaign spokesperson Steven Cheung confirmed it’s on his agenda. In a video posted to his campaign website last summer, Trump said he will tell “Big Pharma that we will only pay the best price they offer to foreign nations, who have been taking advantage of us for so long — the United States is tired of getting ripped off.”

Both President Joe Biden and Trump are attempting to rein in drug prices, underscoring the political appeal of attacking pharmaceutical companies in an election year when voters tell pollsters they’re concerned about the cost of living.

Others are skeptical of the policy’s prospect for success. Larry Levitt, executive vice president for health policy at KFF, noted that Trump’s last-minute push in 2020 to implement the policy relied on an "expansive view" of Medicare’s authority.

“During his presidency, Trump attacked pharma constantly but didn’t end up accomplishing much, either backing away from proposals or having them tied up in litigation,” Levitt said.

YOUR GUIDE TO EMPIRE STATE POLITICS: From the newsroom that doesn’t sleep, POLITICO's New York Playbook is the ultimate guide for power players navigating the intricate landscape of Empire State politics. Stay ahead of the curve with the latest and most important stories from Albany, New York City and around the state, with in-depth, original reporting to stay ahead of policy trends and political developments. Subscribe now to keep up with the daily hustle and bustle of NY politics.

Public Health

TREATMENT, NOT JAIL — Too many lives have been ruined by laws that incarcerate people involved with drugs like crack cocaine or marijuana, a White House official said Wednesday, POLITICO’s Carmen Paun reports from Atlanta, Georgia.

Instead, nonviolent offenders with substance use disorders should be directed to treatment, Dr. Rahul Gupta, the director of the White House Office of National Drug Control Policy, told attendees at the Rx and Illicit Drug Summit in Atlanta.

“Diversion for nonviolent offenders facing substance use is something every state, every community needs to implement and implement quickly,” he said.

Research shows that people with substance use disorder recently released from jail are at higher risk than the general population of dying from a drug overdose.

Why it matters: Gupta’s call comes as several Democrat-led states and cities turn to tougher-on-drug policies in response to rising overdose deaths, public drug use and homelessness.

Oregon Gov. Tina Kotek signed a bill Monday recriminalizing drug possession after a ballot measure made it legal three years ago to possess small amounts of hard drugs for personal use. The new law offers several paths for people caught with drugs to seek treatment to avoid jail.

Last month, voters in San Francisco approved a proposal by Mayor London Breed to screen and mandate addiction treatment for people receiving welfare.

And Washington, D.C., revived a 1990s law allowing the police to designate drug-free zones for up to five days to stop drug trafficking and loitering.

Global Health

MAY DEADLINE BLOWN? With a month left to reach a deal on a pandemic agreement, some negotiators and civil society experts are losing hope they’ll make a May deadline and thinking about an extension, at least on the trickiest issues, Rory reports.

A comprehensive agreement on the most contentious issues, such as access to pathogens and intellectual property, looks unlikely. More realistic, insiders say, is a high-level framework deal on the more agreeable elements, while countries give themselves an extra year or two to crack the tougher nuts.

“Everyone is now talking about [an extension] in the margins,” one negotiator from a high-income country told POLITICO. “It is still just about possible to get a shorter, high-level agreement in May, but I fear even that window is rapidly closing,” he added.

A WHO official acknowledged Wednesday that further work might be needed past May.

Jaouad Mahjour, head of the WHO Secretariat team working on the negotiations, said officials were working on a “streamlined” text ahead of negotiations resuming April 29. Meanwhile, countries might need to “reflect on issues that need further work after the May deadline,” Mahjour said.

Names in the News

Matthew Fery is now a principal at Invariant, a consulting firm. He previously was chief of staff for former Rep. Brian Higgins (D-N.Y.)

Gabbi Salmon is joining Booz Allen Hamilton as a senior legislative affairs consultant to the Advanced Research Projects Agency for Health. She previously was a senior associate for the Vogel Group.

WHAT WE'RE READING

NPR reports on barriers for Medicaid enrollees when looking for mental health care.

POLITICO’s Carmen Paun reports on how Uganda used the U.S. Dobbs decision to argue for anti-LGBTQ+ laws.

POLITICO’s Maya Kaufman and Nick Reisman report on the uncertainty around New York’s Medicaid budget.

Easily connect with the right N.Y. State influencers and foster the right relationships to champion your policy priorities. POLITICO Pro. Inside New York. Learn more.