Wake Forest Law Review
19Sep

Taking Stock of the Comstock Act: Legal Relic or Courtroom Crusade?

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Anna Duong-Harrison

History

            In 1873, Congress passed the Act for the Suppression of Trade in, and Circulation of, Obscene Articles of Immoral Use––the colloquial Comstock Act.[1] This Act criminalized the circulation of contraceptives and birth control-related information through the mail, including medical textbooks and magazines.[2] Even instruments that could be used to perform abortions were considered obscene.[3] The Act also forbade the sale of contraceptives across state lines.[4] The guilty recipients of these so-called “obscene” materials faced up to ten years in prison.[5] Twenty-four states quickly followed the federal government’s lead with their own Comstock laws.[6]

Anthony Comstock, a Christian zealot, inspired this wave of broad, unforgiving legislation.[7] After successfully lobbying Congress to pass the Act, Comstock regularly scoured New York City for people to arrest.[8] Equipped with funds from the New York Society for the Suppression of Vice, Comstock contributed to the arrest of hundreds of people, including prominent women’s rights advocates.[9] Comstock and others’ “campaign against obscenity” reflected fears that contraception and related materials may scandalize their children, promote immorality, and disincentivize marriage.[10]

Even though critics challenged the constitutionality of Comstock laws, the Supreme Court staunchly held that the First Amendment did not protect obscenity.[11] However, by the early 1900s, judicial enforcement of Comstock laws tapered off as courts recognized the challenges of applying such a broad statute.[12] For example, in U.S. v. One Package, the Second Circuit held the Act inapplicable to mailed contraceptive materials if the intended purpose was not “unlawful.”[13] The court reasoned that even though the legislators intended “unlawful” to be synonymous with “abortion” in the Act, modern changes in medicine required a new interpretation of the term to mean unlawful abortions.[14] Then, in 1972, the Supreme Court finally answered the hotly debated question of how to define obscenity, which further narrowed qualifying materials under the Act.[15] Finally, two hallmark Supreme Court cases, Griswold v. Connecticut and Roe v. Wade essentially rendered the Act null, since both contraception and abortion became legal.[16]

Can a Literal Interpretation of The Comstock Act Impact Abortion Care in North Carolina?

The strict nature of the original 1873 Comstock Act eventually morphed into today’s 18 U.S.C. §§ 1461 and 1462.[17] These statutes prohibit the mailing and importation of “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.”[18] As legal scholars have noted, the Supreme Court’s decision to remove the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization has potentially harkened a return of the Comstock Act.[19]

A literal interpretation of the Comstock Act could restrict FDA approval of mifepristone and misoprostol and arm the Department of Justice (DOJ) with more discretion under a conservative administration.[20] A literal interpretation of the Comstock Act would prohibit the mailing of any items related to abortion, regardless of sender intent.[21] This means FDA approved mifepristone and misoprostol would be inaccessible to doctors, even in states where abortion is legal.[22] The breadth of the Act could even limit the mailing of medical instruments like dilators, gloves, and speculums, which are used in a variety of obstetric procedures, including abortions.[23]

While some may view this application of the Comstock Act as reactive political rhetoric, five cities have already passed local ordinances that criminalize the shipping and receiving of abortion medications under §§ 1461 and 1462.[24] In recent oral arguments, Supreme Court Justices Clarence Thomas and Samuel Alito asked attorneys if the FDA violated the Comstock Act by approving mifepristone and misoprostol.[25] By raising this issue, the Justices signaled an openness to revive a legal relic. Republican Vice-presidential candidate J.D. Vance has also voiced his direct support for enforcing the Comstock Act.[26] In January 2023, Vance joined a group of legislators in a letter to the DOJ urging it to apply the Comstock Act to mailed abortion pills, which are also used for miscarriage healthcare.[27] The letter echoed Vance’s shared position that the Act had been misinterpreted and misapplied by the federal government.[28] Thus, it is not far-reaching to wonder if the Act will make a reappearance under a Trump/Vance administration.

Conclusion

Ultimately, it would take a literal interpretation of the Comstock Act by both the DOJ and the Supreme Court to reach North Carolina. To do so, the Act would have to restrict FDA approval of mifepristone and misoprostol, receive DOJ support, and find Supreme Court backing. It is more likely that a reemergence of the Act would impact access to mailed abortion medication in states where abortion is illegal. Yet, the possibility of the Act reaching North Carolina is not implausible, and the possibility of the Comstock Act’s revival from relic to reality may be looming in the near future.

[1] David Schultz & John R. Vile, The Encyclopedia of Civil Liberties in America, 87–88 (Taylor & Francis Group, 2005).

[2] Id. at 88; Mabel Felix, et al., The Comstock Act: Implications for Abortion Care Nationwide, Kaiser Family Found. (Apr. 15, 2024), https://www.kff.org/womens-health-policy/issue-brief/the-comstock-act-implications-for-abortion-care-nationwide/.

[3] Id.

[4] Id.

[5] See id.

[6] Anthony Comstock’s “Chastity” Laws, The Pill, https://www.pbs.org/wgbh/americanexperience/features/pill-anthony-comstocks-chastity-laws/#:~:text=Anthony%20Comstock%20was%20jubilant%20over,trade%20on%20a%20state%20level.&text=New%20England%20residents%20lived%20under%20the%20most%20restrictive%20laws%20in%20the%20country.

[7] See id.

[8] See Schultz, supra note 1, at 207.

[9] Id.

[10] Schultz, supra note 1, at 208.

[11] See id.

[12] See id. at 14–40.

[13] See United States v. One Package, 86 F.2d 737, 739 (2d Cir. 1936).

[14] See id. at 739–40.

[15] See Miller v. California, 413 U.S. 15, 24 (1973) (limiting obscene material to the confines of a strict three-part test).

[16] Griswold v. Connecticut, 381 U.S. 479, 485 (1965); Roe v. Wade, 410 U.S. 113, 165 (1973).

[17] See Ebba Brunnstrom, Abortion and the Mails: Challenging the Applicability of the Comstock Act Laws Post-Dobbs, 55 Colum. Human Rights L. Rev. 1, 3 (2024).

[18] 18 U.S.C. §§1461–62.

[19] See supra, note 17.

[20] E.g.,Felix, supra note 2.

[21] See id.

[22] Annalies Winny, The Threat to Abortion Rights You Haven’t Heard Of, Johns Hopkins Bloomberg School of Public Health (May 31, 2024), https://publichealth.jhu.edu/2024/how-the-comstock-act-threatens-abortion-rights.

[23] See supra, note 2.

[24] Id.

[25] See transcript of Oral Argument at 26–91, FDA v. All. for Hippocratic Med., 144 S. Ct. 1540 (2024).

[26] Alison Durkee, JD Vance and Project 2025 Want to Use This 19th Century Law to Ban Abortion Without Congress, Forbes (Jul. 18, 2024), https://www.forbes.com/sites/alisondurkee/2024/07/18/jd-vance-and-project-2025-want-to-use-this-19th-century-law-to-ban-abortion-without-congress/.

[27] Letter from J.D. Vance, et al., U.S. S. to Hon. Merrick B. Garland, Att’y Gen. (Jan. 25, 2023), https://www.documentcloud.org/documents/24834197-20230123-letter-on-comstock-to-doj.

[28] See id.

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9Apr

Will Florida Become the Next State to Protect Abortion Access Through Constitutional Amendment?

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Katie Palmer 

Introduction

In 2023, the Florida legislature passed a bill that restricted access to abortion after the gestational age of 6 weeks.[1] While the legislation provided exceptions for certain circumstances, including those in which a pregnancy may endanger the life or physical health of a pregnant woman,[2] it greatly restricted access to abortion for most pregnant individuals after 6 weeks. In an attempt to overturn the new legislation, numerous individuals and organizations, including Planned Parenthood of Southwest and Central Florida, sued the State of Florida on the grounds that the new law violated the right to privacy guaranteed by the Florida Constitution.[3] Despite their attempts to nullify the new piece of legislation, the Supreme Court of Florida held that “there is no basis under the Privacy Clause to invalidate the statute.”[4]

Even after losing this judicial battle, critics of the new law were not prepared to give up.[5] Instead, they turned to the last remaining avenue for relief: amending the state’s constitution to protect Floridians’ abortion rights.[6]

Resistance to Constitutional Amendments Protecting Abortion Access

Enacting constitutional amendments to protect abortion access has become increasingly common since the passage of Dobbs v. Jackson Woman’s Health[7] in 2022. [8] As of February of 2024, California, Kansas, Kentucky, Michigan, Vermont, and Ohio have all passed constitutional amendments protecting abortion access.[9] While growing in popularity, these amendments did not reach their respective ballots without encountering resistance from their fair share of opponents.[10]

In Ohio, several members of the Ohio Ballot Board refused to add such an amendment to the ballot, claiming that “the ballot language [was] misleading, contain[ed] material omissions, and [was] improperly argumentative.”[11] To begin with, these board members took issue with the ballot’s substitution of the phrase “reproductive medical treatment” for “reproductive decisions.”[12]  In response to their concerns, the Supreme Court of Ohio stated that the phrase “reproductive medical treatment” was “imprecise at worst,” but “[did] not render the ballot language misleading.”[13] The board members also took issue with the ballot’s proposed phrasing of “citizens of the State of Ohio” instead of “State,” which the court agreed could lead to voter confusion.”[14] Finally, the board members argued that the ballot language was misleading about “whether the proposed amendment protects a woman’s right to continue a pregnancy,” but the court responded that their “argument lack[ed] merit because it [was] an inaccurate characterization of the ballot language.”[15]

After addressing each of the board members’ concerns, the court called upon the ballot board to reconvene and reword the phrase “citizens of the State of Ohio,” but otherwise upheld the proposed amendment.[16] Following the court’s decision, the ballot board placed the amendment at the top of the ballot for the state’s next general election.[17] Ohio voters subsequently approved the amendment on November 7, 2023, thus enshrining the right to an abortion in their state’s constitution.[18]

In Michigan, the constitutional amendment faced similar opposition before it made its way onto the state’s general election ballot.[19] Although the proposed amendment received 753,759 signatures, which was the largest number of signatures an amendment has received in the state’s history,[20] the Board of State Canvassers refused to approve the amendment for placement on the ballot.[21] Joined by intervenor defendant Citizens to Support Michigan Women and Children, the Board of State Canvassers, among others, argued against including the proposed amendment on the ballot because “there [was] [in]sufficient space between certain words of the text of the proposed amendment.”[22]

In a one-page opinion, the Supreme Court of Michigan ruled that the alleged spacing problem did not change the meaning of the amendment and ordered the Board to certify the petition.[23] Following this order, the state’s next general election ballot included the proposed amendment, which passed by a wide margin on November 8, 2023, and went into effect on December 23rd.[24]

An Advisory Opinion from the Supreme Court of Florida

Like those in Ohio[25] and Michigan,[26] opponents to the constitutional amendment in Florida were not willing to allow the amendment onto their ballot without putting up a fight.[27] The Attorney General of Florida, joined by several organizations, petitioned the state’s highest court for an opinion about the proposed amendment.[28] Following this petition, proponents and opponents alike filed briefs arguing their position, and the court heard oral arguments on February 7, 2024.[29]

After hearing from the involved parties, the Supreme Court of Florida addressed each of the concerns expressed by opponents of the proposed amendment.[30] First, the petitioners argued that the amendment violated Florida’s single-subject constitutional requirement[31] because it reached two issues: “abortion before viability of the fetus and abortion based on a healthcare provider’s authority.”[32] However, the court disagreed, stating instead that the amendment complies with Florida’s constitutional requirements because “viability and maternal health are interconnected matters related to the subject of abortion.” In response to the petitioner’s concern that the proposed amendment would mislead voters,[33] the court held that “there is no basis to reject the proposed summary and ballot title” as both are clear and accurate.[34] Finally, the court concluded that the proposed amendment is facially valid under the U.S. Constitution and approved the amendment.[35]

Conclusion

Following the court’s ruling, the amendment is set to appear on the ballot in November 2024.[36] Advocates for and against the amendment have done all they can to alter the fate of abortion access in the courts,[37] but the voters will ultimately determine the fate of Floridians’ access to this facet of health care.[38] Although the referendum will need 60 percent support to become law, organizations like the Florida Women’s Freedom Coalition are convinced that it will reach this high threshold.[39] As of November, Florida may become the next state to add abortion access to its citizens’ constitutionally protected rights.

[1] Fla. Stat. § 390.0111 (2023).

[2] Id. at § 390.0111(1)(a).

[3] Planned Parenthood v. State, No. SC2022-1050, 2024 Fla. LEXIS 483, at *8 (Fla. Apr. 1, 2024).

[4] Id.

[5] In re Advisory OP. to the AG re Limiting Gov’t Interference with Abortion., No. SC2023-1392, 2024 Fla. LEXIS 484 (Fla. Apr. 1, 2024).

[6] Id. at *3.

[7] See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

[8] Mabel Felix, et rel., Addressing Abortion Access Through State Ballot Initiatives, KFF (Feb. 9, 2024) https://www.kff.org/womens-health-policy/issue-brief/addressing-abortion-access-through-state-ballot-initiatives/#:~:text=Since%20Dobbs%2C%206%20states%20%E2%80%93%20California,abortion%20prevailed%20in%20every%20state.

[9] Id.

[10] See State ex rel. Ohioans United for Reprod. Rights v. Ohio Ballot Bd., 2023-Ohio-3325 (Ohio 2023).

[11] Id. at *P2.

[12] Id. at *P15.

[13] Id. at P*17.

[14] Id. at *P23-26.

[15] Id. at *P30-32.

[16] Id. at *P49.

[17] Julie Carr Smyth, Ohio voters enshrine abortion access in constitution in latest statewide win for reproductive rights, AP News (Nov. 7, 2023), https://apnews.com/article/ohio-abortion-amendment-election-2023-fe3e06747b616507d8ca21ea26485270.

[18] Id.

[19] Reprod. Freedom for All v. Bd. of State Canvassers, 510 Mich. 894, 894 (Mich. 2022).

[20] In Michigan, A Historic Victory for Abortion Rights, ACLU (April 6, 2023), https://www.aclu.org/news/reproductive-freedom/in-michigan-a-historic-victory-for-abortion-rights.

[21] Reprod. Freedom for All, 510 Mich. at 894.

[22] Id.

[23] Id. at 894-95.

[24] ACLU, supra note 10.

[25] See State ex rel. Ohioans United for Reprod. Rights v. Ohio Ballot Bd., 2023-Ohio-3325 (Ohio 2023).

[26] See Reprod. Freedom for All, 510 Mich.

[27] In re Advisory OP. to the AG Limiting Gov’t Interference with Abortion., No. SC2023-1392, 2024 Fla. LEXIS 484 (Fla. Apr. 1, 2024).

[28] Id., at *3-4.

[29] Id., at *4.

[30] Id., at *7.

[31] Fla. Const. art. XI, § 3.

[32] In re Advisory OP., 2024 Fla. LEXIS 484, at *7, *10.

[33] Id., at *16-22.

[34] Id., at *24.

[35] Id., at *31.

[36] Adam Edelman, Florida Supreme Court allows 6-week abortion ban to take effect, but voters will have the final say, NBC News (Apr. 1, 2024), https://www.nbcnews.com/politics/florida-supreme-court-abortion-rights-ballot-measure-rcna142568.

[37] See Planned Parenthood v. State, No. SC2023-1392, 2024 Fla. LEXIS 483 (Fla. Apr. 1, 2024); In re Advisory OP., 2024 Fla. LEXIS 484.

[38] Edelman, supra note 36.

[39] Ryan Lizza, Abortion Might Be a Winning Issue – Even in Florida, Politico (Apr. 6, 2024), https://www.politico.com/news/magazine/2024/04/06/abortion-rights-florida-anna-hochkammer-00150870.

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3Apr

Abortion Rights in the Era of COVID-19

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By Alexandria Montgomery

As the COVID-19[1] pandemic continues to spread across the United States, a new wave of abortion litigation has reached federal courts. In the wake of the ongoing pandemic, several states—including Texas, Ohio, Iowa, Alabama, and Oklahoma—have attempted to restrict women’s access to abortion procedures under the guise of promoting social distancing and conserving healthcare resources.[2] These temporary abortion bans have most commonly come in the form of an executive order from a state’s governor regarding limitations on non-essential medical procedures.[3] This raises several legal questions. May abortion be considered a “nonessential” medical procedure? Moreover, are these abortion bans constitutional given that they are supposedly only temporary? And finally, does the public interest in stopping the spread of COVID-19 and conserving much-needed personal protective gear (“PPG”) for healthcare professionals outweigh a woman’s constitutional privacy interest in obtaining an abortion?

On Monday, March 30, a federal judge halted a temporary abortion ban in Texas.[4] Texas Governor Greg Abbott had issued an executive order (“Executive Order GA-09”) on March 22 that required all health care professionals and facilities to postpone  “all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death . . . .”[5]

The next day, the Attorney General of Texas, Ken Paxton, issued a press release clarifying that the that the Executive Order GA-09 prohibited “any type of abortion that is not medically necessary to preserve the life or the health of the mother.”[6] Of note, the Attorney General’s interpretation, which explicitly prohibited “any type” of abortion, would not only ban surgical abortions, but medication abortions as well—despite the fact that medication abortions do not require any type of surgery or procedure. The Attorney General’s interpretation also made clear that those who did not comply with Executive Order GA-09 could face criminal “penalties of up to $1,000 or 180 days of jail time.”[7]

Several abortion providers (collectively, “Planned Parenthood”) quickly filed a constitutional challenge against the Governor and state officials seeking a temporary restraining order against both the Texas Attorney General’s interpretation of Executive Order GA 09 and the Order itself.  In granting the temporary restraining order, which prohibits Texas from enforcing Executive Order GA-09 as applied to any type of abortion, the court made several determinations.

First, the court stated in no uncertain terms that, “[r]egarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such procedure.” Indeed, for nearly half a century, the Supreme Court has repeatedly and emphatically held that the Due Process Clause of the Fourteenth Amendment includes a right of privacy that protects a woman’s right to make the ultimate decision to terminate a pregnancy at any point prior to viability.[8] Before the point of viability, “a state has no interest sufficient to justify an outright ban on abortion.”[9] In other words, although states may regulate pre-viability abortions, they may not outright ban them.[10]

The court, however, also addressed several factors that are specific to this unprecedented situation caused by the COVID-19 pandemic. Although Texas and some other states have attempted to classify “any type” of abortion as nonessential, abortion is a time-sensitive procedure.[11] Many states such as Texas have placed gestational limits on when a woman may legally obtain an abortion.[12] Because of these limits, even a temporary ban on abortion would allow some women’s pregnancies to progress to a point at which it would no longer be legal to obtain an abortion, effectively stripping some patients of their constitutional right to choose to terminate a pregnancy.[13]

Moreover, it has always been and will continue to be the case that restricted access to abortion services disproportionately impacts low-income women. Long before the COVID-19 pandemic, some of the most common reasons that abortion patients provided for choosing to terminate a pregnancy included the inability to afford raising a child and the belief that continuing the pregnancy would interfere with their ability to work.[14]  And now, in the midst of a pandemic that has already wreaked havoc on the United States economy, the risks of requiring someone to continue an unwanted pregnancy are perhaps even greater.[15] In only a two week time-span, unemployment insurance claims in the United States have increased a shocking 1500%.[16] Labor economists estimate that potentially 14 million workers will lose their jobs due to the pandemic by the summer.[17] In the face of such severe economic distress, it is vital now more than ever that women are able to make deeply personal decisions relating to whether they are in a position to bring a dependent child into the world.

Finally, the court noted that because of the pandemic, travelling to other states to obtain an abortion is increasingly risky.[18] The Centers for Disease Control and Prevention has warned that travelling, even within the United States, may increase the possibility of contracting COVID-19.[19]  Accordingly, the court determined that allowing medical providers to resume abortion services would not disserve the public interest.[20] Any benefits of conserving a limited amount of PPG for healthcare providers is outweighed by the harm of allowing a state to ban abortions outright.[21] A woman’s constitutional right must take precedence, especially when paired with the unfortunate current economic circumstances and the increased health risks that travelling to other states to obtain an abortion would pose. In short, a woman’s constitutional right to obtain an abortion continues to survive, even in the midst of an unprecedented pandemic.

[1] COVID-19 is the name of the disease caused by the novel coronavirus (SARS-CoV-2). See Naming the Coronavirus Disease (COVID-19) and the Virus That Causes It, World Health Org., https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it (last visited Apr. 1, 2020).

[2] See Kate Smith, Abortion in Texas will resume, despite attorney general orders, CBS News (Mar. 30, 2020, 06:47 PM), https://www.cbsnews.com/news/texas-abortion-ban-halted-federal-judge/.

[3] See, e.g., Tex. Exec. Order No. GA-09 (Mar. 22, 2020), https://gov.texas.gov/uploads/files/press/EO-GA_09_COVID-19_hospital_capacity_IMAGE_03-22-2020.pdf (prohibiting nonessential surgeries and medical procedures in Texas).

[4] See Smith, supra note 2. In recent days, federal judges have also enjoined similar COVID-19-related abortion bans in both Ohio and Alabama. See Ema O’Connor, Judges Struck Down Three State Bans On Abortions During The Coronavirus Outbreak (Mar. 31, 2010, 10:53), https://www.buzzfeednews.com/article/emaoconnor/judge-struck-down-abortion-ban-texas-coronavirus.

[5] See Tex. Exec. Order No. GA-09, supra note 3.

[6] See Press Release, Ken Paxton, Attorney Gen. of Tex., Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic (Mar. 23, 2020), https://www.texasattorneygeneral.gov/news/releases/health-care-professionals-and-facilities-including-abortion-providers-must-immediately-stop-all.

[7] See id.

[8] See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (declaring that a state’s regulation is an unconstitutional “undue burden” if the regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”); Roe v. Wade, 410 U.S. 113, 170 (1973); see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016) (reaffirming the central holdings of Roe and Casey that prior to the point of viability, the state may not unduly burden a woman’s constitutional right to obtain an abortion).

[9] Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, slip op. at 6 (W.D. Tex. filed Mar. 30, 2020) (citing Roe, 410 U.S. at 163–64)

[10] See id.  

[11] See Abortion & COVID-19, Nat’l Abortion Federation, https://prochoice.org/abortion-covid-19/ (last visited Mar. 30, 2020).

[12] See Abbott, slip op. at 7 (citing Tex. Health & Safety Code Ann. § 171.044 (West 2017)) (explaining that Texas bans abortions after 20 weeks post-fertilization).

[13] See id.

[14] See Rachel K. Jones et al., Guttmacher Inst., Characteristics of U.S. Abortion Patients, 2008, at 7, 9 (2010) (“Poor women were overrepresented among abortion patients.”).

[15] See Abbott, slip op. at 8.

[16] See Heidi Shierholz, Unemployment Insurance Claims Jumped Nearly 1,500% in Two Weeks, Econ. Policy Inst. (Mar. 26, 2020), https://www.epi.org/press/unemployment-insurance-claims-jumped-nearly-1500-in-two-weeks-i-have-been-a-labor-economist-for-a-very-long-time-and-have-never-seen-anything-like-this/ (stating that there were 3.3 million unemployment insurance claims in the week before March 26).

[17] See id.

[18] See Abbott, slip. op. at 8.

[19] See Coronavirus and Travel in the United States, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html (last updated Mar. 30, 2020). Although the CDC does not typically issue domestic travel restrictions or advisories, it has now issued a travel advisory urging the residents of New York, New Jersey, and Connecticut “to refrain from non-essential domestic travel for 14 days” due to the severity of the COVID-19 outbreak in these states. See id.

[20] See Abbott, slip. op. at 8.

[21] See id.

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