The Resurgence of the Comstock Act and Its Implications for Abortion Rights

The Comstock Act, enacted in 1873, was named after Anthony Comstock, a fervent anti-vice crusader who believed moral decay was as dangerous as treason. The law prohibited the mailing of any obscene materials, including literature related to birth control and abortion. Comstock's influence waned after his death in 1915, but the law remained on the books, occasionally invoked against publications like Playboy, which faced postal restrictions in the 1950s.

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Following the Supreme Court's decision to overturn Roe v. Wade in 2022, the legality of abortion pills has come under scrutiny. Despite 41 states imposing some form of abortion ban, telehealth services have allowed many women to obtain abortion medication by mail. In 2023, Texas activists Mark Lee Dickson and Jonathan F. Mitchell attempted to leverage the Comstock Act to restrict abortion access in New Mexico, arguing that it could serve as a backdoor to a national abortion ban. However, the New Mexico Supreme Court rejected their efforts.

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The Biden administration's Department of Justice issued a memo in 2022 declaring the Comstock Act largely unenforceable, yet conservative efforts to revive it persist. Notably, Jonathan F. Mitchell, who played a key role in the New Mexico case, has filed a federal lawsuit against a California doctor for allegedly providing abortion pills, potentially setting the stage for a Supreme Court review of the Comstock Act's applicability to abortion rights.

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Critics argue that the revival of the Comstock Act reflects a broader trend of Christian nationalism that seeks to control women's reproductive rights. Experts like Joanne Rosen emphasize that the implications extend beyond women, affecting male partners' reproductive choices as well. The selective enforcement of the Comstock Act raises concerns about the potential for a nationwide abortion ban under future administrations.

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• “is a very easy route to try to shut down abortion nationwide,” — Joanne Rosen, Professor at Johns Hopkins Bloomberg School of Public Health

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• “That basic drive for Christian nationalism, and very specifically, a white Protestant Christian nationalism, that’s what has never gone away,” — Amy Werbel, Art History Professor at the Fashion Institute of Technology

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• “It isn’t just women whose ability to control their fertility would be affected,” — Joanne Rosen, Professor at Johns Hopkins Bloomberg School of Public Health

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As legal battles surrounding the Comstock Act continue, experts anticipate that the upcoming federal lawsuit involving Jonathan F. Mitchell could escalate to the Supreme Court, potentially reviving the Comstock Act's relevance in contemporary abortion politics. The outcome of this case may significantly impact reproductive rights across the United States.

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