by Elisha Brown, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]
April 28, 2023
When officials in a small New Mexico city sued the governor and attorney general over their ordinance placing restrictions on abortion clinics earlier this month, they argued that a late 19th century federal anti-obscenity law superseded state law. In March, Gov. Michelle Lujan Grisham signed into law a measure prohibiting public entities from interfering with reproductive and gender-affirming care access.
It was the latest legal challenge to abortion access to lean on the Comstock Act of 1873, federal statutes that ban the mailing of anything “obscene, lewd, lascivious” or considered morally impure, including abortifacients or abortion-related materials. The plaintiffs in the high-profile Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, challenging the U.S. Food and Drug Administration’s decades-old approval of the key abortion pill mifepristone, cited the act in legal arguments, asking the court to find the 150-year-old law makes it illegal to send abortion pills through the mail.
But in December, the U.S. Department of Justice Office of Legal Counsel issued an opinion for the U.S. Postal Service stating that federal law does “not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully. Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.’’
The campaign launched by abortion opponents to revive the Comstock Act is working: Recent court rulings in the abortion pill case suggest the dormant law can be applied today.
U.S. District Judge Matthew Kacsmaryk referenced the act earlier this month in revoking FDA approval of mifepristone, a decision immediately appealed to the U.S. Fifth Circuit Court of Appeals. “Defendants rely heavily on the OLC (Office of Legal Counsel) Memo that purports to establish this ‘consensus.’ But none of the cases cited in the OLC Memo support the view that the Comstock Act bars the mailing of abortion drugs only when the sender has the specific intent that the drugs be used unlawfully,” Kacsmaryk wrote. He found that the FDA’s decision to allow abortion pills to be mailed violated the act.
The conservative-leaning appellate court in Louisiana also appeared skeptical of the federal government’s argument that the Gilded Age law is irrelevant. “The plain text does not require that a user of the mails or common interstate carriage intend that an abortion actually occur. Rather, a user of those shipping channels violates the plain text merely by knowingly making use of the mail for a prohibited abortion item,” the Fifth Circuit wrote. (The U.S. Supreme Court issued a stay on lower courts’ rulings last week while the appeals process plays out in court, leaving the ability to access the pill in place.)
Legal and historical experts told States Newsroom the statutes – named after the moral purist Anthony Comstock – could be the next major legal argument used by the anti-abortion movement in the courts to restrict abortion and reproductive health care. “No court has really determined what is the enforceability and scope of the Comstock Act,” said Rachel Rebouché, Temple University Beasley School of Law dean.
“We’re going to see this head right back to the Supreme Court,” Rebouché said.
Who was Anthony Comstock?
Anthony Comstock was a Connecticut native affiliated with Congregationalists, a devout sect of Christianity descended from the Puritans, according to Amy Werbel, a cultural historian and professor at the Fashion Institute of Technology who wrote the 2018 book Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock.
“They were true believers in the sense that if one wasn’t saved properly as they thought, they would burn in hell. And I think that’s really important to understand – that the root of all of these laws is even Christianity, the desire to save the souls of Americans through the lens of their own religious framework. And that also then will be motivated by this idea of Christian nationalism,” Werbel said.
Comstock spent his life spreading his view of moral superiority. Congregationalists believed that sex was a sin and people should only have intercourse for procreation, Werbel said. After serving in the Civil War – many Northern fundamentalists were abolitionists – Comstock and others turned to other tactics to sanctify the nation. “An abortion also wasn’t seen as a sin because it was the death of a person. It was seen as taking away the punishment for sex” because procreation was the sole purpose of intercourse, Werbel explained.
His crusade eventually influenced Congress, who named the 1873 anti-obscenity laws after him, she said. President Ulysses S. Grant signed the act into law in March 1873. First-time violators faced up to five years in prison. The federal government soon hired Comstock to serve as a Post Office special agent.
“After 1873, Comstock goes all over the country,” Werbel said. “He goes to state capitals. He’s always bringing suitcases of contraceptives, abortifacients, sex toys, pornographic photographs. And [he] spread them out for people to look at, then they pass the legislation, express their horror.”
The act was weakened in the 20th century after a pivotal U.S. Supreme Court ruling,1965’s Griswold v. Connecticut, which found the state law banning contraception was unconstitutional and violated the right to privacy, according to legal experts. Six years later, Congress removed restrictions on contraception and birth-control information from the act, wrote Joanna L. Grossman, a Southern Methodist University law professor, and Lawrence M. Friedman, a Stanford Law School professor.
But a version of the law is still on the books – Congress never repealed it.
Culturally, the newfound interest in the late-19th century anti-obscenity codes revives a stunted view of sexual morality, said Priscilla Smith, a Yale Law School professor and director of the Information Society Project’s study of reproductive justice program. “They’re rooted in archaic views of women’s sexual expression and their subservient role in the family. They really were designed to control women’s sexual activity.”
“All of these things go together,” Werbel said. “The suppression of teaching about LGBTQ history, the suppression of access to abortifacients. All of these things go to this belief that is also woven into this particular Christian evangelical idea: God creates Adam, woman is born from man, and I’m just going flat out say it – a white man has dominion over all else in the world, including women.”
New Mexico ordinance cases cite Comstock
The New Mexico lawsuit, filed on April 17 in the Fifth Judicial District Court County of Lea, stems from the city of Eunice’s recently enacted ordinance requiring abortion clinics to comply with Comstock.
The ordinance is part of the so-called Sanctuary Cities for the Unborn campaign, started by Texas anti-abortion activist Mark Lee Dickson, whose mission has been to ban abortion across the nation city by city. The initiative started in Texas and has spread to other states.
The New Mexico Supreme Court recently suspended similar ordinances in Hobbs and Clovis, Source NM reported. And the town of Edgewood just passed a parallel ordinance, according to the Albuquerque Journal.
“The problem that the New Mexico attorney general has really isn’t with these ordinances; it’s with these laws that were passed by Congress in 1873,” Dickson told States Newsroom. “Even if the New Mexico Supreme Court were to rule against us, that would actually be a great opportunity to take this before the Supreme Court of the United States. And I do not believe the Supreme Court of the United States would hold the same opinion as the Office of Legal Counsel opinion that the Biden administration put forth.”
Attorneys for Eunice – two local lawyers and former Texas solicitor general Jonathan Mitchell, the architect of a bounty-style six-week abortion ban – argued that city ordinances and the Comstock Act take precedence over state laws, according to the complaint. “Federal law imposes criminal liability on every person who ships or receives abortion pills or abortion-related paraphernalia through the mail, an express service, a common carrier, or an interactive computer service,” they said.
They also claim distributing abortion pills is a violation under the Racketeer Influenced and Corrupt Organizations (RICO) Act. Therefore, abortion providers such as Planned Parenthood, employees, volunteers and donors face civil and criminal penalties, the suit said.
“I think the argument is that RICO provides a civil cause of action against people who are violating civil law,” Rebouché said. “RICO is a hook to prosecuting people under civil litigation for their conspiracy to violate federal law. It’s just another way to try to breathe life into Comstock.”
Last week, New Mexico Attorney General Torrez argued that the local government ordinances exceed their authority and are unconstitutional, according to a brief filed to the state Supreme Court.
“Our brief demonstrates that the counties and cities violated the state constitution and state law when they passed their ordinances to restrict abortion care and undermine women’s reproductive rights,” Torrez said in a statement. “Further, our briefing provides analysis into House Bill 7 which reinforces our argument that local governments cannot regulate abortion clinics and reproductive healthcare.”
Eunice officials want a judgment that the act is fully enforceable, after the Dobbs decision overturned the federal right to abortion. They urged the court to ban abortion pills and abortion-related paraphernalia through the mail.
Arguments referencing Comstock target early abortions, according to Smith, the Yale professor. Medication abortion is approved by the FDA for up to 10 weeks of pregnancy. Besides abortion pills, devices called tenaculums and vacuum aspiration equipment are needed in surgical abortions. Even though 14 states ban most abortions, there are still exceptions in some states to save the life of the mother or terminate an ectopic pregnancy, for example.
“It’s ridiculous to say that abortion remains legal in many states around the country, and yet you can’t deliver equipment and medications used to perform abortions through mail carriers,” Smith said. “How else are you going to get the equipment there? That’s like saying it’s legal to take Viagra, but nobody can send it to pharmacies or doctors around the country.”
Sofia Resnick contributed to this report.
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