AHLA's Speaking of Health Law
AHLA's Speaking of Health Law
Women’s Health Watch: Recent Litigation and the Comstock Act
Delphine O’Rourke, CEO, 8Fold Inc., speaks with Adriana Benedict, General Counsel, Hey Jane, about recent litigation related to women’s health and how the Comstock Act is specifically being litigated in this area. They discuss the Supreme Court’s recent decision in FDA v. AHM; the FDA’s allowance of mail-order medication abortion; the history of the Comstock Act, how it has been enforced, and how its scope has been expanded to include the internet; litigation involving Idaho, Missouri, and Kansas; Congressional proposals related to IVF; and other industries that could be affected by the Comstock Act.
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Speaker 2:This episode of A HLA speaking of health law is brought to you by A HLA members and donors like you. For more information, visit American health law.org.
Speaker 3:Hello and welcome to ALA's Women's Health Watch. Today we're gonna focus on the Comstock Act, also known as a Comstock Law, and I'm thrilled as your host, Delfin O'Rourke to introduce Adriana Benedict, who is General Counsel of Hey Jane . Welcome.
Speaker 4:Thank you so much, Delphine. It's such a pleasure to be here speaking with you on this topic. It is so timely in view of the recent Supreme Court decision in the Miry Stone case, and so many other initiatives , uh, going on throughout the country around abortion.
Speaker 3:So lets , it's a great place to start. Let's anchor the conversation. Today is , uh, June 18th, 2024. We were expecting and have had one decision, Supreme Court decision, two decisions in the month of June that would impact reproductive care. We also have the second year anniversary of Dobbs coming up on the 24th. So the first decision that you referenced was in the FDA case , uh, focused on medicated abortion, and the second one will be Idaho and Natala . And if you had an opportunity to listen to the first overview podcast with Ramona Thomas, we talked about the impacts and potential impacts of both of the decisions. Um , excited to share that we predicted both the timing and the, at least part of the decision in the FDA case that it would be , uh, decided on standing. I thought it would be dismissed on standing , standing, but it wasn't dismissed. And we're gonna get into that, and I'd love to start there before we dive into Comstock because of the context. Um, also because, you know, the, the media coverage that we're seeing at least in the first week, and now it's starting to wheel back, was, you know, headline after headline. I'm reading some from like USA today. Supreme Court preserves access to widely used abortion medication, Mery stone , um, you know, a, b, C news, US Supreme Court rules to preserve access over and over. Um, it really, this was, I mean, most of, most of the audience are or are most, and it's based on standing. So this was on a substantive, this is a procedural issue, and I think that's really important, particularly for non-lawyers to appreciate. Think of, you know, something like a mistrial that you might see on TV or double jeopardy. This was not on the arguments, but whether or not the individuals who brought the case had a right to be in court. Um, and I think, again, that is super important. This was not based on a decision around the, the , the FDA on access. This was a decision based on standing. Um, so let's start with that one, because obviously , um, a, it's right off the press and any insight that you can provide, including the impact of remanding, and then link it into Comstock , because that is one of the big issues that was not addressed , um, and that we really have silence moving forward. So if you could give us your reaction to the decision and your analysis to kick it off, that would be fantastic.
Speaker 4:Absolutely. So, you know, what I actually think was most surprising about the opinion was that it was a unanimous opinion , um, that this case has gone through two , uh, fifth Circuit panels , uh, before getting to the Supreme Court. And this is actually the second time , uh, it has been up at the Supreme Court. And all of that has happened prior to a unanimous decision finding. These plaintiffs don't have standing. And, you know, that is , um, you know, that is , um, unusual in that typically, you know, where there is such an obvious lack of standing, one might expect that the plaintiffs could not get this far , um, already having, you know, two bites of the apple at the Supreme Court. Um, and so, you know, I think this really helps frame the context of what is really going on here with this case, which is, you know, an obvious attempt , um, to , uh, threaten restrictions on access , um, that, you know, cannot be obtained at the ballot box or through administrative agencies, but are being pursued through the courts , um, based , uh, as you mentioned on laws that , uh, some of which are from 1873 , um, and , uh, really trying to restrict access to medication that has for decades been found to be safe and effective by FDA , um, and is widely available via telemedicine , um, in part due to changes , uh, that stemmed from Covid , uh, which opened up telemedicine for a broad array of healthcare services. So, you know, what we are seeing here is a very, very , um, um, you know, strong litigation attempt to restrict that access that should have been kicked out , uh, immediately , um, at the district court level, but somehow made it all the way to the Supreme Court , um, only to be , uh, to only for them to find unanimously that there obviously is not standing in this case. So I think, you know, we should all kind of pause and ask ourselves, why did this case get this far? Because it's unusual for plaintiffs that obviously lack standing to be able to , uh, you know, advance , uh, their claims , um, in this manner. And it is further surprising that we didn't see , uh, a full dismissal of the case in view of the obvious lack of standing. We would , uh, you know, expect that that means now that the original plaintiffs are gone, this entire case , uh, should be tossed. However, the Supreme Court did remand for further proceedings to the lower courts where there are currently three intervening states, Idaho, Missouri, and Kansas , uh, before the Northern District of Texas. Um, and they're arguing essentially the same thing that the original plaintiffs , um, were arguing. They are asserting that , uh, because the 1873 Comstock Act prohibited the mailing of things related to abortion, that FDA aired in allowing , uh, abortion medication to be provided via telemedicine. Um , now we'll discuss, you know, those arguments further, but it, it, it is, I I think notable that for the past 14 months we have been , uh, basically waiting for the Supreme Court or any court to deliver what is really an obvious , uh, conclusion that the original plaintiffs here lack standing , uh, based on their, you know, anxiety that they may, there's a remote possibility that they may one day in an emergency room encounter a patient who has experienced a very rare complication from an incredibly safe and effective medicine. So, before we
Speaker 3:Jump into, so what could happen, you know, it's been remanded, could it come back and also dive into the Comstock Act? Um, I think this is a great time to bring up, you know, you said , you mentioned that telemedicine had opened up a , you know, broad array of services. If you could share your, what , hey, Jane is, you know, hey Jane's story. Um, and, and the work that you do around this, because you are, and what Hey , Jane is doing, this is not an ancillary issue for you. You have expanded into primary care and other areas of, of healthcare, but you are involved with this day in and day out, which also explains, you know, not only your deep knowledge of , of the legal issues, but also the practical impact . So if we could just, yeah. Before we jump into the Comstock Act, share a little bit about hey, Jane , and, and your, your history with this.
Speaker 4:Sure. So as, as you noted, I'm general counsel for Hey Jane , which is a telemedicine provider of reproductive healthcare , including medication abortion. Hey , Jane has been providing services since 2021, has served over 60,000 patients. Uh , originally when hey, Jane launched , uh, there were some covid flexibilities around the use of telemedicine , uh, for the provision of medication abortion. And thereafter, FDA following a very thorough review, determined that it was appropriate to make tho those allowances for telemedicine permanent. And so that is what is being challenged in this case, is FDA's permission to provide medication abortion via telemedicine, following their extensive review of the safety profile of decades of history of prescribing , uh, Mifepristone , including , uh, the substantial evidence , uh, from prescribing Mifepristone during covid via telemedicine. It was with all of that information that they made a very informed and reasonable decision to permanently allow mail order dispensing of medication abortion. And as you know, this is , uh, hey Jane's kind of core business , uh, although it has expanded into other areas. Uh, we are currently , um, in network with , uh, a number of insurance plans, and we do provide , uh, the leading service for medication abortion , uh, via telehealth , uh, that is available through , uh, a number of insurance plans nationwide,
Speaker 3:Nationwide, anything . So, thank you for sharing that and your work. We, you touched on the anxiety, you know, the threat of the Comstock Act, and, and I'll come back to that point when we, when we talk about accusations that, you know, current, current efforts in congress or scare tactics , um, but that type of anxiety that hangs over companies like yours , uh, physicians, providers, those of you, I'll put a little plug in who are attending the A HLA annual meeting. Um, I'll be doing a session on the , on the Tuesday talking about , um, you know, the physicians and putting legal partnerships to really sur , uh, help the physicians navigate this , um, because the anxiety is widespread. It's the patients, it's the providers, it's the companies, it's the families. Um, and this is not about whether you support abortion on a personal level. This is about the laws and how they're being interpreted , um, how the FDA is being challenged on, on what grounds. And to your earlier point , standing, as we know, is one of the basic questions that you ask in litigation. You know, is there standing, what is the jurisdiction? This is not a , um, is not a sort of for , for non-lawyers out there, sort of this esoteric question that comes up rarely whether the plaintiffs even have the right to be in court. So usually you wouldn't get to the Supreme Court to have a unanimous decision. It would actually be interesting to, to research whether there's actually , there's ever been a Supreme Court , um, unanimous decision that threw a case out on standing. Like, is there any precedent here , um, to see that. So Comstock, just before we dive in , uh, a little history lesson, because when you look at legal history of reproductive care, it's, you know, what's old is new again , um, the Comstock Act, also known as a Comstock law. So it was a federal statute that was passed by the US Congress in 1873. And there have been, again, when you look at the history of reproductive health, there have been these sort of tightenings restricting and, and loosening around reproductive health, abortion contraceptives , um, and at the same time that there've been social, social restrictions. So Anthony Comstock, he was a zealous crusader, what he considered obscenity. So this is also sometimes referred to as a purity , uh, law, and he criminalized. Okay. Um, so this is not just civil, this is a criminalization of the use of post office. And, and we're gonna touch on the expansion beyond the post office, but at the time, in 1873, that's what you had to send among other things. And I quote, obscene, lewd, lascivious, indecent, filthy, or vile and quote , articles, materials, or substances. And it also prohibited the distribution of devices or medication for abortion or contraception. Okay. So, you know, today we're discussing primarily its impact on abortion, but we're also gonna touch on, you know, what other industries , um, a really expansive view and what referred to as the revivalist movement around the Comstock Act, how it could, how it could impact other industries. So , um, um, Loretta , we've had this law in the books 18 since 1873. There's a theme here in Arizona, you know, it pulled up a law from 1864, so going back well over a hundred years in seeing what can be applied today. Uh, tell us more about the Comstock Act and how it relates to this recent FDA decision.
Speaker 4:Sure. And I I also think it's worth pausing to mention that, you know, obviously the Comstock Act was passed before women could vote, you know, and we've seen what happened in Arizona. We see what happens now when women can vote. Um, you know, the relying on an 1873 law is , uh, a form of disenfranchisement. Um , you know, this is , uh, you know, an attempt to enforce laws that could never be passed today. But , um, you know, if we look at the history of how the Comstock Act has been enforced, there is a clear judicial interpretation establishing that the Comstock Act was not intended to prohibit the mailing of things meant for lawful purposes. It was not meant , it was not applied , uh, it to, for example, contraception when lawfully provided by a doctor to their patients. Um, there were attempts to enforce the comm stock laws against , um, things or information , um, that were provided lawfully, and the courts rejected those attempts. Uh, there's , uh, a great , you know, a lot of great , um, writing by Mary Ziegler and Reva Siegel on the history of the Comstock Act and its enforcement. I encourage everyone , um, to, to read that. Uh, but you know, what they have noted is that, you know, Comstock really , uh, thought of abortion and contraception as equal vices. Um, he viewed, he , his moral objections to both were the same. And , uh, you know, he sought , uh, to, he sought to enforce a world of chastity. And , uh, to him, contraception and abortion , uh, were not , um, consistent with a world , uh, a world of chastity. Uh, they were , uh, they promoted vice . And so it's kind of in that context that we have to really think about. Uh, what is the plausible relevance of the Comstock Act today? The Comstock Act has also been narrowed by statute. Um , it , uh, it no longer , um, uh, under as written , uh, prohibits the mailing of information or things for contraceptive purposes. However, it does still prohibit the mailing of things or information for purposes , uh, related to abortion. Now, again, it's important to emphasize that the courts have never interpreted the Comstock laws to be enforceable against the lawful mailing of things for abortion. And , uh, this interpretation has been acknowledged by Congress , uh, and also by the US Postal Service, and most recently by the Office of Legal Counsel , um, in its , uh, memo explaining, tracing this history, explaining and concluding that the comm stock laws do not prohibit the mailing or sending of information or things for abortion that are sent for lawful purposes. And there are many lawful purposes , um, in many states that do still allow , um, things to be mailed for abortion, including medication. Now , um, to your question, Delphine, how does this relate to FDA's decision? Well, the Comstock Revivalists believe that they can use this 1873 law to challenge FDA's allowance of mail, order medication abortion. They say that because in 1873 , uh, the mailing of things for abortion was banned. FDA should have taken that into account and not allowed the mailing of medication abortion. Now, for a long time, the Comstock Act , uh, was, you know , uh, essentially unconstitutional under roe . And so there wasn't a whole lot of attention paid to it, and unfortunately, right? And so, you know, it remains on the books, but for, for decades, it was thought to be unconstitutional under roe , and it's only now post Dobbs that these Comstock revivalists are trying to argue that they can bring Comstock back from the grave and use it to somehow challenge FDA's expert determinations regarding , uh, you know, the safety and efficacy of telemedicine abortion. And so that's what we're seeing , uh, in the courts, right? These arguments , uh, could be brought to FDA . And I think it's notable that Justice Kavanaugh indicated in his unanimous , um, opinion that, that that is the avenue , um, that those who oppose telemedicine abortion have available to them. If they want to challenge , um, you know , FDA's regulations, they can go complain to FDA . Um, however, the court did not , uh, toss this case entirely, and as we noted it , it , it has been remanded to the lower courts. So we do expect that this litigation will continue as a threat to telemedicine abortion that will continue to work its way through the courts and continue to sow confusion and anxiety and fear around the provision of telemedicine abortion, so that people , um, are scared of obtaining , uh, telemedicine abortion, which is an FDA approved, safe and effective method of healthcare.
Speaker 3:So thank you for that thorough and just phenomenal answer that reflects the depth of your understanding. And I'm gonna try to just connect some dots and provide some context, because, you know, when we're thinking about, you made a great point , um, many points saying this is a disenfranchisement. And, you know, on our first podcast, we talked about the connection between reproductive health and democracy in the healthcare system, and that this isn't, quote , just about abortions longer implications. You know, I'm just gonna provide some context that for me, you know, I think is helpful. And I've had conversations and, and people said, wow, okay, this helps us. It's not just a date. You know, when we were talking about the Arizona laws, people said, oh, this was even before statehood. Um, for example, in most of the country in , uh, the time period that we're talking about 1873, interracial marriage was illegal. And, you know, in 1878, the Virginia Supreme Court of Appeals upheld the state's law prohibiting interracial marriage and affirm that Virginia law had priority over that of other jurisdictions. Okay? So when we're talking about public morals and purity, this again, around the same time period as a Comstock Act, the judge in that opinion wrote purity of public morals, the moral and physical development of both races and the highest advancement of our cherished southern civilization, under which two distinct races are to work out and accomplish the destiny to which the Almighty is assigned them on this continent, require that they should be kept distinct and separate in that the connections and alliances so unnatural that God in nature seem to forbid them should be prohibited by positive law and subject to no , of that's in 1978. So when we're talking about purity, and we're talking about sanity, this is the context. It's not purity and obscenity of today. And I think that's important. I took this time to read this quote because it's, it's to see, you know, when we talk about there's a history of restricting abortion in, in the United States, you know, look the language in, in, in Dobbs decision, but that history has evolved, and there are so many other social issues , um, and fundamental issues that are impacted by this type of regression to prior moral decisions or whatever they wanna call it, purity decisions that we would never accept today. Um, and the point that, you know, it's Comstock has not been interpreted to prevent the mailing of legal abortion. And I think that's clearly an important state, too important point , uh, that you raised. And to pause on, this is not the shipment of, you know, heroin or some type of illegal substance. It is legal. Okay? Now, you know, Louisiana , uh, has now made them a controlled substance, but that's different than illegal. So really a stretching of the interpretation of the Comstock laws. And, you know, as you said, it was considered unconstitutional under row . And, you know, like the Arizona statute, nobody was really paying attention to it. It was on the books , um, because the trigger laws hadn't gone into effect. I mean , to me, the larger conversation is also, well, what else is on the books that could be reinterpreted as both sides of this conversation , uh, look for, you know, let's say available tools to move their agenda. That's right. Um , which brings, you know, which, so, you know, brings me then , um, you know, we talked about the remanding , um, and we've talked about, you know, the , the part of the Dobbs decision was to send these, the decision back to the states that it wasn't supposed to be the Supreme Court making decisions, yet we now have two cases that have gone up in the past two years, and we're just a, a litany of litigation across the country. So if you could talk about one , um, what could be the path here? Does it go back to the district court , um, as you mentioned? So that's question part one. Part two is one of the intervening states is Idaho, and as we know, Idaho's the , uh, the , the statute, the abortion ban at issue in the Idaho and Tala case, that where we expect a decision in the next two weeks. So that's an interesting juxtaposition. And then three, if you could bring us to, you know, the current last week's , um, proposed bill on the Democratic side for IVF , um, responses there, and how the Comstock , uh, act relates to, connects to I-V-F-I-U-D, because it's not just about medication abortion , um, about other abortive agents. So that's, that's a four part question. So , uh, so let's start with what, what could we expect next? Because I think right now, unfortunately, the way the decision was covered, folks are like, okay , that conversation is over and it's far from over,
Speaker 4:Right? So what happens next here is that there are three states that have been granted intervention in the northern district of Texas. As you know, those are Idaho, Missouri, and Kansas. Those same states actually had also tried to intervene in the Supreme Court appeal of the preliminary injunction, and the Supreme Court did not allow their intervention. So I think there's something to be , to be read in the tea leaves there. However, those states are still in the Northern District of Texas. And , uh, as of the granting of their motion to intervene , um, the, their complaint was accepted, and , uh, the, the , uh, answer to the complaint was actually state . So what Judge Katz Merrick ordered was that within two weeks of the Supreme Court issuing a decision in the appeal, that's the decision we got last week. Um , the parties are to propose a timeline for the filing of the answer to the complaint of the intervening states. Now , um, I think it'll be interesting to see if in addition to a proposed timeline, we also see perhaps a motion to dismiss , um, or some other dispositive motion based on the Supreme Court's unanimous decision on standing. Um, because of course, it's a matter of black letter law, once the original plaintiffs in a case , um, have been found to not have standing , uh, that should be the end of the case. And , um, you know, the , if these plaintiffs want to bring their complaint in a new case , um, you know, they may be able to do so , uh, but it , you know, they would need to do so in a proper venue. And it's not clear that for these states, the Northern District of Texas would be an appropriate venue. Um, so, you know, that's, so that's I think, part one of your question. Now, part two , um, one of the states, as you know , uh, is Idaho, and Idaho is at the same time arguing in the Tala case before the Supreme Court, that it does not have to provide a abortion related emergency care, despite Tala that it's state law prohibiting abortion in all , uh, circumstances except to save the life of the mother. Uh, Idaho is arguing that , uh, they are not required to provide other forms of emergency care, and they can simply helicopter women out of the state , um, and turn them away instead of providing the stabilizing care , uh, that tala a requires in emergencies. Um, meanwhile , uh, they're trying to save standing , uh, in the northern district of Texas so that they can keep this case before Judge Kamarck . And , uh, they are saying that they feel injured , uh, by the possibility of having to expend resources through , uh, er increased emergency visits, again, related to incredibly rare complications , um, from a medication that is one of the safest and most effective medications on the market. So , um, you know, from a common sense perspective, Idaho shouldn't be able to have it both ways. Um, so I , I think it will be interesting to see what happens , uh, with the Supreme Court's decision in the Tala case, and, you know, if there's , um, you know, any consequences of that , uh, for what Idaho is trying to argue for standing in the MIRIs stone case. Um, you also asked about the bills that were recently Yeah ,
Speaker 3:So lemme jump in there , just there for so Tala, and as a, as a reminder or a, a refresher for, for , um, some of our audience members who may not be familiar with Tala . This is a 1986 federal law. Um, and now you're sort starting to see that , you know, the , the, the juxtaposition of laws that was passed that sometimes referred to as a patient anti-dumping law, and it wasn't about the specific care. The goal was to make sure that people could be stabilized in the emergency room regardless of their ability to pay, so that if you came in and had a true emergency, you couldn't be turned away because you couldn't pay. So for, I mean, effectively think every emergency room in the country, if somebody comes through the emergency room with an emergency, they need to be , uh, stabilized or tra and or transferred if you can't take care of the care. So that's, that's the tala . It's, you have to , um, you have to stabilize. And if in a state like Idaho where there is no exception for the health of the mother , um, if abortion needs to be performed or to save the life of a mother , uh, which one sort of controls, and, and generally it would be federal laws . So the impact of the Idaho Tala decision , uh, will be significant either way, not just because of Idaho , uh, but more broadly about when does Tala apply, when does it not tta well , tala apply, and just generally between federal and state laws , um, this is an area where I wish we had more data. You know, when you're making an argument that the burden is gonna be significantly higher, you know, the population of Idaho isn't that, that high to begin with? Um, it would be, we're not quite there yet to have statistics on how many women are in fact, using the emergency room and getting care under in Tala , um, because of medicated abortion, you know , um, even before , uh, jobs , uh, over 50%, roughly over 50% of abortions through medicated abortion. So the , these are not new techniques, and they weren't an issue before from a , uh, a significant issue before, from a research , uh, a resource perspective. You know, you more people come in with the flu , uh, by far. So anyways , right . But again, you know , a lot of arguments on both sides. So bringing us back to the congressional discussions and the proposal for an IVF ban , um, or , uh, i right proposal in response to attempts at the state level to, to ban IVF specifically Alabama.
Speaker 4:Right? And real quick, before we jump to that , um, I, I think it's also worth noting that another one of the states , um, that is, that is intervened in Texas, in the Risto case, is Missouri. And they were , uh, there were two hospitals in Missouri that were hit with M TOLA violations , uh, for failing to provide emergency stabilizing care , uh, to patients who needed abortion related stabilizing care. They were experiencing , uh, miscarriages and they needed , uh, care that involved , uh, emergency care that involved an abortion. This has nothing to do with medication abortion, but they did need emergency stabilizing care involving an abortion, and they were denied that care. And so two hospitals in Missouri were hit with tala violations. So, you know, it's, it's, it's really , um, it's hard to believe that if, you know, hospitals in these states are turning away women who need emergency abortion care , uh, to treat their miscarriages, it's hard to believe that they would be incurring , uh, you know, such tremendous expenses in providing emergency care to rare complications of ferry stone . Um, so I just wanted to, to note that as well. And , and of course, as Justice Kavanaugh noted in , um, this , the unanimous standing decision, you know, these despite, you know, having 20, 23 years of , uh, experience with miry stone in the market, they failed to come up with a single example of an emergency physician being presented with a patient experiencing a complication from Mifepristone , uh, who was requiring care that they did not want to provide. Um, so , uh, moving on from that to the, to the Senate bills , uh, that were blocked , um, in the last couple of weeks , um, there was a vote , uh, re uh, on a bill that would have protected the right to contraception , um, and another one on , uh, a bill that would have protected , uh, the right to IVF. And , um, both of these were blocked. Um, uh, and what , what was said to block them, I, I think, is what is uh, revealing here. Uh, Republicans , uh, very much took the position that the contraception , uh, the right to contraception bill , uh, would have allowed abortion , uh, even though it made no mention of abortion. Um , why, why did they take this position? Well, in a hearing in the Senate, the prior day on abortion , um, you know, the witness for , um, the Senate Republicans indicated that they believe IUDs common forms of contraception, IUDs and Plan B, emergency contraception, they believe common forms of contraception to be abor patients . So, you know, it's at , at , at that point. You know, if we don't, if we can't agree on what is contraception and what is abortion , um, and we are, you know, basically , uh, fighting the abortion battle in the contraception context, then who knows how far they can go, right? Um, the <crosstalk> , lemme
Speaker 3:Jump in there, but this isn't new, this conflation of contraceptives abortion, you know, touching on marriage. Um , you know , this is a , this is historically we've seen this over and over , um, yet like we thought it had sort of, you know, I was about to say, you know, I'd been put to bed . Maybe that's not the, the , the right imagery here. Um, but that, you know, it was finally separated and it's coming back again. And, you know, when folks, when Dobbs first started, people say, oh, you know, this will never hit contra contraception. Well, why not? You know, there there's no reason that , uh, we're seeing the arguments set up , uh, to conflate contraception with abortion. And I think I'm hoping that in your continued answer, you'll also touch on the IUDs. 'cause that concerns me. 'cause there was a hope that, you know, more people have IUDs, they're more reliable, generally they're cheaper, they're more and more companies that are addressing the pain issue, that IUDs could be part of the solution to decrease the demand for abortion. But if IUDs are being , um, targeted, then that might not be the solution.
Speaker 4:Right? And, you know, this all stems from , um, you know, a religious belief that is working its way , um, into our laws , uh, that life begins at conception. Um, and, you know, this is explicit in , uh, project 2025, which is the Heritage Foundation's playbook for the next Republican presidency. Um, the , the far right religious extremists believe life begins at conception, and that includes , uh, embryos that are not yet implanted. Um, and that is why we're now seeing attacks on IVF. Uh, we saw the Alabama Supreme Court , um, essentially setting aside from what I can tell the establishment clause, you know, relying on religion to find that because life begins at conception , um, you know, frozen embryos have rights. Um, and, you know, this, this goes further, I think, than many of us, you know , um, would , would've anticipated , um, because it really gets at the core , um, of , um, arguments that we are seeing , um, percolate their way through re uh, through state courts , um, related to fetal personhood. Um, and, you know, when Dobbs overturned Roe, that was really kind of step one for this , uh, movement. I, I fear that the goal, the explicit goal is to enshrine a constitutional right to fetal personhood , um, that will , uh, you know , fundamentally override , uh, the constitutional rights of, of all pregnant people. Um, there are some really astounding , um, statements in Project 2025 about this , um, including one that says HHS should never place the interests of adults over the right of a biological child , uh, to be raised by their biological parents, right? So they're , what they are trying to , um, promote is this idea that even an unplanted fetus of frozen embryo or a fetus that is not yet implanted and for which an IUD may prevent implantation, that those embryos have more rights than the, you know, the people who created them.
Speaker 3:And that's the people. Let's, let's be clear. And that's, if those, you know, male and female people, female , um, uh, this is, this is not just trumping the women's rights, it's, it's the male and the, and the female , uh, parents or, you know. Absolutely . Um, so you brought up Project 2025, and I think, you know, let's, there's so much here, and we could have a series just on , um, just on the Comstock Act or just on, you know, just part of, you know, congressional response , um, elections brought up Project 2025. It's a roadmap and it's available, I think , on the internet. I mean, I, I clicked on it through a link. Um, it's two things I wanna touch on before we wrap up is Comstock was about the mail originally. Yeah . But tell us how it expanded to include the internet. Sure. So I think that is critically important that, you know, folks understand, you know , I'd say, oh, well, you know, I don't use a stale mail for anything. Okay? But it's much broader than that,
Speaker 4:Right? So when the telecommunications act of 1996 was passed, the com stock laws were expanded , uh, to apply , uh, to information , uh, or things sent through internet communication services. And this is generally understood to have been kind of an 11th hour , uh, amendment , uh, to , to the act and is one that was challenged right away by ACL U , um, as fundamentally unconstitutional. Um, and at the time, the Clinton administration , uh, said that they agreed essentially, and they would not be enforcing , um, the law. And as a result , um, that lawsuit did not proceed. And , uh, this fundamentally unconstitutional and unenforceable law remains on the books as a , a , a vehicle for , uh, far right extremists to bring further litigation, trying to threaten things like telemedicine, access to abortion. But that, like you've, you know, emphasized delphine, it's not just abortion. Uh, justice Thomas and his concurrence to Dobbs invited challenges to contraception. He invited challenges to many constitutional rights. Um, and I think we can expect those challenges will percolate their way up to the Supreme Court. And, you know, whether or not we currently have a constitutional right to contraception, I think can no longer be an indication of whether we will have one next year or the year after that.
Speaker 3:So, and, you know , uh, it's a concept of slippery slope. You know, you talk about IVF IUDs contraception , um, okay, you know, trans care , those are all in a lot of ways folks see those maybe as related issues. Um, but you and I have talked about this, that it could go even Comstock could, you know, swoop up, you know, with that broad definition. It could be the adult POI industry, which is billions of dollars in the us whether you agree with it or not. It could be medical devices that , um, you know, that are used for, for abortions, but are also used for other GYN , um, other procedures. What are other examples of other industries that could arguably , um, get, get swept up
Speaker 4:A ab absolutely right to call out the very large industries , um, that, you know, could become targets under Comstock? Um, like you said, it's not just abortion. It's not just forms of contraception and IVF that , um, you know , uh, religious extremists view as abortion, but it's also really any, any number of things that , uh, could be argued to be obscene or indecent. Um, right. There's , uh, like you mentioned , um, very large industries around medical devices , um, that, you know, many, many , um, individuals may be opposed to , uh, because of their own , uh, beliefs. Um, maybe because they believe they're dangerous, maybe they're ethically opposed to them. Um, but really , um, you know, all sorts of devices and things , um, that arguably are considered obscene and decent or may be viewed as abor NCE in some way. Um, all of that , um, is subject to being targeted under Comstock . And , um, we're talking about, you know, multi-billion dollar industries here , um, that are really , um, you know, just at the mercy of litigants that are going to continue pursuing these challenges through the courts because , um, you know, they know that the courts are , uh, really , uh, the only avenue they have , uh, to pursue these kinds of extreme claims.
Speaker 3:Thank you. Thank you for sharing. I mean, this is, this is the purpose of the goal education information. Um, so thank you for that. And that's what it's about, is share, share the facts. Um, you know, I make, I make predictions and, and some of them work and some of them fall flat. I'll wrap up with the prediction that we're, this is gonna, you know, a couple years we're gonna see the music industry, we're going to see , um, the movie industry impacted if, if we have a project 2025 and we'll look back and say, oh my God, you , or, or , you know, we never thought this would happen , um, yet the warning signs are here. So it's not scare tactics, it's not being alarmists, it's just look at the law and, and look at the history and the trends, and in the arguments that are being made. There's a roadmap out there, and part of it is for, for folks to be interested and tune in and to think about the eventuality. So again, huge thank you to , um, um, to a HLA . Um, a huge thank you to Adriana Benedict, general counsel of Hey Jane . And if you wanna talk to Adriana Moore about , um, the work that she's doing or the Comstock Act , uh, please reach out to her on LinkedIn. Again, this is Delphine O'Rourke . Thank you so much.
Speaker 4:Thank you, Delphine.
Speaker 2:Thank you for listening. If you enjoy this episode, be sure to subscribe to a HLA, speaking of health law, wherever you get your podcasts. To learn more about a HLA and the educational resources available to the health law community, visit American health law.org .