Rev. Pat Mahoney, Peggy Nienaber of Faith and Liberty and Mark Lee Dickson of Right to Life East Texas pray in front of the U.S. Supreme Court on April 21, 2023. Some abortion-rights opponents say the Comstock Act of 1873 can ban abortion pills, which experts say is divorced from the law’s purpose. (Chip Somodevilla/Getty Images)
The public is waiting on a U.S. Supreme Court decision about abortion pills that’s expected this month. During arguments in the case in March, most of the justices appeared skeptical of an anti-abortion group of doctors whose lawyers argued regulation of mifepristone should be tightened.
However, Justices Samuel Alito and Clarence Thomas, the two most conservative members of the bench, appeared to favor arguments from Alliance Defending Freedom — the legal firm representing those doctors — that a late 19th-century anti-obscenity law could prevent the mailing of abortion medication.
The Comstock Act of 1873 banned the mailing of “obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance” and materials “intended for producing abortion, or for any indecent or immoral use.” Named after anti-vice crusader Anthony Comstock, officials used the law to attack advocates of women’s rights and sexual freedom.
By the 1930s, the statute became dormant. Congress tweaked some of its language in 1971, but a version of the law is still on the books, and some abortion-rights opponents argue that the measure can be used to ban abortion pills.
Not so, according to abortion-rights legal experts Reva Siegel, a Yale Law School professor, and Mary Ziegler, a University of California, Davis School of Law professor. A year ago, Siegel and Ziegler started working on a comprehensive history of the Comstock Act and how the anti-abortion movement revived the “zombie law” after the Supreme Court overturned Roe v. Wade nearly two years ago.
“Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It” is set to be published in the Yale Law Journal early next year, but a draft of the 82-page article is available on Social Science Research Network.
Siegel and Ziegler spoke to States Newsroom last week about how the anti-abortion movement is obfuscating the actual intent of the law, which targeted obscenity, not abortion. The following interview has been edited and condensed.
States Newsroom: Do you foresee repercussions to the anti-abortion movement for re-aligning itself with “Comstockery” and the 19th century anti-vice movement?
Mary Ziegler: Yeah. There are two things that we can learn from the fact that the anti-abortion movement is embracing Comstock again. One is that this anti-abortion movement doesn’t fear repercussions, in part because the movement is pursuing strategies that don’t really depend on voters’ approval. Comstockery is one of those strategies. We talked about how this is an effort to sort of circumvent voters. Many of the other strategies the movement is emphasizing right now also depend either on the federal courts, which are relatively insulated from popular pressure, or they depend on pretty uncompetitive partisan state legislatures. The strategy in itself reflects the idea that the anti-abortion movement is less concerned about the will of the people, because it’s trying to find ways to impose policy without the support of voters. There may be backlash — I don’t know if it will be the kind of backlash that the movement registers.
Reva Siegel: I’m going to add something that Mary’s comments moved me to say. After the anti-abortion movement gave up the effort to amend the [U.S.] Constitution in the 1970s – The Human Life Amendment strategy — and shifted to litigation, it began to attack Roe as itself, an interference with popular will. Whether the opposition to Roe was based on commitment to democracy, or just merely a convenient way of appealing to collective values to attack abortion rights, was never as clear as it might have been. But it’s become really clear now, that having achieved the goal of overturning Roe, the anti-abortion movement doesn’t have a great appetite for democracy.
And it’s looking for various ways to advance its commitment in ways that override popular opinion and even the efforts of people to adopt referenda to express their will. In some respects, it’s revealing its hostility to democracy. And one can locate the Comstock statute strategy in that tradition. Comstock was never an absolute, no exceptions nationwide abortion ban. And it didn’t get enacted for the kinds of reasons that the right is suggesting (that) it advances fetal protection. Nonetheless, they’re talking about the Comstock Act in these ways, in an effort to find a way of achieving a national ban that either courts or a Republican administration might enforce, without having to bother persuading the American people to adopt such a law which the movement understands it’s in no position to do right now.
SN: In what ways do you think Anthony Comstock used an anti-democratic strategy with the original Comstock Act of 1873?
MZ: It was enacted at a time when the people who would be the most affected by it were unable to vote. It was enforced in ways that had troubling implications for immigrants and people of color. But the Comstock Act also had unique features that made it troubling from a democratic legitimacy standpoint, largely that those charged with enforcing the law, including Anthony Comstock and others who worked alongside him, were likely to throw the book at people who were politically critical of the Comstock Act or the ideas of sexual purity that Comstock championed. It was quite consciously to shut down political speech.
SN: We’ve seen some groups, such as the Center for Reproductive Rights and the American Civil Liberties Union, argue that related litigation, such as the Alliance case, should be resolved before trying to tackle the version of Comstock that’s still on the books. What do you think about this legal strategy?
RS: The control of the Congress is divided, there’s a filibuster in place and there’s an election looming. So the key issue, as we see it right now, is that people understand there’s a risk that if a Republican administration is in power, it will try to enforce this law. It’s important for people to vote first. And a second critical thing in the process of opposing these Republican efforts to revive enforcement [is that] we shouldn’t make the mistake of crediting their interpretation of the law, which is not based in text or history of the statute. It’s really important to be very clear that the problem is the risk of an abusive interpretation and enforcement of the statute, and the importance of getting it off the books because of the announced intention or interest in using the law in some respects in ways it’s never been enforced, and in other respects, regardless, in ways that it hasn’t been enforced for nearly a century.
SN: The main two modern day proponents [of Comstock] are Jonathan Mitchell and Mark Lee Dickson. How would you compare them to Anthony Comstock? What have you learned studying their tactics?
MZ: Mark Lee Dickson embraces the comparison to Comstock. He describes himself as a crusader like Comstock was. You can draw comparisons in the sense that Dickson, Mitchell and many of the groups that have adopted this Comstock strategy and innovated it — the Alliance Defending Freedom or Americans United for Life — share interests in regulating more than just abortion. At the same time, I think revivalists like Dickson and Mitchell are essentially projecting their own kind of 21st century beliefs about fetal protection and woman protective arguments onto Anthony Comstock, whose priority pretty unambiguously was regulating illicit sex. And Dickson and Mitchell are unambiguously prioritizing criminalizing abortion and fetal protections.
RS: One thing to add to Mary’s observations is that even though Mitchell, the ADF and others are pursuing change in what we’ve characterized as anti-democratic ways, by evading an encounter with public opinion and proceeding through the ordinary legislative process, they are nonetheless in their own radical way engaging in a form of incrementalism. They’re rolling out the idea of a national, no-exceptions ban on abortion first. We don’t know if there are other things that they might go after that would be more concerning to the American public. For example, when Jonathan Mitchell is litigating around contraception, he does it in the name of parental rights and not a categorical ban on contraception. But it’s concerning, given that there is all of this other obscenity language in the statute and language of morality and indecency.
