Portside

Supreme Court Justice Samuel Alito apparently took a cue from extremist anti-abortion activists last month when he asked during oral arguments on the legal availability of abortion medication called mifepristone why the Food and Drug Administration hadn’t “at least considered the application of 18 U.S.C. 1461” when the agency approved it for public use.

Alito was stealthily referring to the Comstock Act, a 150-year-old zombie statute that’s also referenced by code name only in Project 2025, the Republican Party’s platform for a potential second Trump presidency.

The 1873 statute made it a federal crime to mail anything “obscene, lewd, lascivious, indecent, filthy or vile,” anything designed for “immoral use,” and specifically in one section, any items “adapted or intended for producing abortion.” It’s worth bearing in mind that the general anti-vice provision, not the anti-abortion one, comes first in the statute.

Although it might have been frowned upon, Biden administration solicitor general Elizabeth Prelogar should probably have responded by asking Alito why the justices hadn’t considered application of the Comstock Act in 1973, when the Court decided Roe v. Wade; or two years ago, when they revoked the right to abortion in Dobbs. Neither ruling mentions Comstock, not even by its numerical designation.

One answer is that no one involved in those cases imagined that the Comstock Act applies or should apply in the way ultraconservatives like Alito and Clarence Thomas are now suggesting—as a de facto national ban on abortion.

The Comstock abortion provisions were presumed unconstitutional by the time the Court recognized a constitutional right to abortion in 1973.

Alito and Thomas, and their conservative allies, claim that the Comstock Act’s abortion provision would ban mailing of medication or instruments designed for abortion under any circumstances. But that is only true if the Supreme Court changes current law.

Since the 1930s, Congress, the courts, and even the Postal Service have all settled on an interpretation holding that the law only applies if a sender intended for the receiver to use the medication or tools “unlawfully,” largely because Americans have consistently rejected the notion of all-encompassing morality laws. The Comstock abortion provisions were dormant by the 1960s, and were presumed unconstitutional by the time the Supreme Court recognized a constitutional right to abortion in 1973.

Even if we take the so-called originalist approach, applying the words of the statute as written and paying special attention to the intent of its drafters, the Comstock Act has virtually nothing to do with the “rights of the unborn,” and was never intended as an unconditional ban on terminating pregnancies.

Finally, and probably most important, the statute is practically unenforceable, and almost certainly unconstitutional. That’s because it’s both too broad and too vague, and because of the rights protected under the Constitution’s free-speech and equal protection amendments, which hadn’t been established or weren’t fully clear at the time Comstock was enacted.

As legal scholars Reva Siegel and Mary Ziegler write in a forthcoming paper now out in draft form, “Congress was enacting a law that would be flatly unconstitutional today.”

Upholding the Comstock Act anyway is certainly well within the bounds of possibility when dealing with this current Supreme Court. But those who would be most affected by such a ruling should know how illegitimate such a ruling would be.

TO BE CLEAR, THE CASE SEEKING TO BAN MIFEPRISTONE—which is now used in more than half of all abortions—lacks standing for numerous reasons, and most legal observers agree that it will likely be dismissed on that end. Still, the fact that at least two Trump-appointed federal judges have opened the Overton window to using Comstock as a national ban on abortion pills and tools, and that Alito and Thomas have entertained that radical notion, means more plaintiffs and other courts will try to legitimate the power grab.

Carrie Baker, a professor of women’s legal history and gender at Smith College, told me that Republicans “know they can’t win this issue at the ballot box through democratic processes, so they’re looking for undemocratic ways, including finding archaic laws that haven’t been enforced, to achieve their goals.” Baker is working on a book on the history and politics of abortion pills, to be released this year.

The Comstock Act is concerned, first and foremost, with “illicit” sex, and with discouraging even married people from having sex that isn’t meant for procreation. That’s why the original version also banned mailing objects pertaining to contraception or “the prevention of conception”; condoms, to take a modern example. The law’s namesake, the religious fanatic Anthony Comstock, was among the most notorious busybodies in American history—and that’s more than a sidenote here.

Comstock made clear in speeches, pamphlets, and personal diaries that the point was to prohibit anything at all that might cause young people to have “impure” thoughts. This included any indecent “article, matter, thing, device, or substance,” like sexual advertising and books discussing sex.

Comstock’s moral crusading was ultimately focused on suppressing certain kinds of personal autonomy and expression.

In a highly unusual circumstance, Comstock (who held no position in government) was deputized to enforce his namesake law as a special agent of the Postal Service, with police-like powers. A number of anti-vice organizations sprang up to assist this effort in cities like New York and Chicago. Comstock ended up amassing what was probably one of the largest noncommercial collections of dildos, sex toys, and porn, confiscated from businesses and everyday people.

These ad hoc vice squads even went after books: Chaucer’s Canterbury Tales, the Middle Eastern folk collection called The Arabian Nights, and anatomy textbooks. They also went after paintings and artwork featuring nudes, according to research by Siegel, Ziegler, and Comstock’s biographers. In 1911, postal inspectors even confiscated a report by the Chicago Vice Commission, because it discussed vice.

Still, Comstock’s moral crusading was ultimately focused on suppressing certain kinds of personal autonomy and expression, rather than actually arresting every offender. The broader goal was to scare people, particularly women, from making certain choices they would otherwise be free to.

The concerns about today’s anti-abortion movement are only a little less troubling. If the anti-abortion provision should apply as written, as some conservatives seem to think, then the same principle applies to the law’s anti-vice and censorship provisions too.

That means reanimating the law provides theoretical justification for restricting the mailing of condoms or information about condom use, for example, Baker said.

In fact, the current conservative platform, as outlined in Project 2025, seeks to limit access to condoms provided under the Affordable Care Act’s preventative services mandate. And U.S. District Judge Matthew Kacsmaryk—whose ruling overturned the FDA’s approval of the abortion pills—cited the Comstock Act in a recent decision upholding a campus ban on drag performers at West Texas A&M University, another example of the law’s potential reach.

Of course, Republicans today are also seeking to ban certain books and literature that they’ve deemed obscene, just like their Victorian counterparts.

THE ABORTION PROVISION THAT’S THE FOCUS of recent attention was included in the act only because Comstock and other morality cops believed that even talking about abortion or contraception would incentivize immorality, and allow people to cover up their sins (i.e., by not getting pregnant). To put it differently, supporters of Comstock laws believed people would want to have premarital sex or sex simply for pleasure if they had access to things like condoms and abortions, and that the government should intervene in that kind of sinful behavior.

Still, even Comstock himself stopped short of the kind of total ban his modern counterparts are pushing. In 1915, Comstock told Harper’s Weekly that under the law, a “doctor is allowed to bring on an abortion in cases where a woman’s life is in danger.”

The way the law has been interpreted for much of its history also shows its current meaning is quite different from what the right wing is proposing today.

The Comstock Act hasn’t been widely enforced since the 1930s, after a series of federal court decisions recognized that the government must show that an entity or person who mails abortion-related items intends for the receiver to use them illegally; for example, that the person plans to use them outside the purview of medical professionals.

The Justice Department’s Office of Legal Counsel explained in a 2022 memo that Congress effectively ratified that interpretation by including a note pointing to those 1930s federal decisions when it re-enacted or amended the law. And both the Postal Service and the DOJ have agreed.

An entire body of First Amendment law has made the Comstock Act unenforceable as written.

That leaves us back at the Supreme Court; and there too, anti-abortion extremists have little to stand on.

An entire body of First Amendment law, developed after the Comstock Act, has established broad and robust free-speech rights that allow Americans to access and publish all kinds of information and images that can be fairly described as obscene or indecent. Those rulings have made the Comstock Act unenforceable as written.

In 1957, the Court held in a case against an adult book business that “sex and obscenity are not synonymous,” for example. The Court also held in Griswold v. Connecticut that married couples have a constitutional right to make their own decisions about contraception, free from state control; and it held in Eisenstadt v. Baird that unmarried couples also have the same right.

Even setting those rulings aside, the Comstock Act, if interpreted the way some conservatives are suggesting today, is still likely unconstitutional.

The anti-abortion provision bars not just things related to abortion, but any other article or thing adapted or intended “for any indecent or immoral use,” language that’s either unconstitutionally broad or vague, because it sweeps up far too much, too unpredictably. Moreover, the Supreme Court has never addressed what most of the language in the anti-obscenity provision means (anything “lewd, lascivious … filthy or vile”) for much the same reasons.

Still, conservatives have proven by now that they’re relying on ideology and religious belief—not sound legal arguments or public sentiment—to change law. Perhaps the only viable strategy is to make clear that these laws are a backdoor tool to regulate people’s morality and what they do with their bodies, and maybe to amend or even repeal these antiquated laws, as some Democrats are already suggesting.

Prospect staff writer Hassan Ali Kanu is an award-winning reporter covering everything from courts and access to justice, to politics, labor, and more. He is a Sierra Leonean, now living in Washington, D.C. Follow @hassankanu

Read the original article at Prospect.org.

 Used with the permission. The American Prospect, Prospect.org, 2024. All rights reserved.

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