Balkinization: Comstockery in the Court and on the Campaign

Comstockery in the Court and on the Campaign

Guest Blogger

Reva Siegel & Mary Ziegler

We have just posted Comstockery on SSRN, the first legal history of the Comstock Act since the antiabortion movement began arguing for reviving enforcement of the law in the wake of Dobbs v. Jackson Women’s Health Organization. The movement has advanced claims to revive enforcement of this 1873 federal obscenity law—whose long-unenforced provisions cover abortion-related articles—in courts and in the presidential campaign. This post provides a brief update.

On March 26, Food and Drug Administration v. Alliance for Hippocratic Medicine will return to the Supreme Court. Representing the Alliance, the Alliance Defending Freedom (ADF), a leader of the Christian legal movement that has played key roles in 15 Supreme Court cases, including Dobbs and 303 Creative v. Elenis, has challenged the FDA’s authority to approve mifepristone, a drug used in more than half of all abortions, under the relevant laws and regulations. ADF has further sought to overturn several subsequent FDA decisions, including one in 2021 permitting the use of telehealth for medication abortion. In the case now before the Court, ADF argues that the removal of an in-person-visitation requirement was arbitrary and capricious under the APA. ADF also makes a Comstock claim against the 2021 modification, asserting that the plain meaning of the statute bars the mailing of any abortion-related article. This argument has received attention from conservative judges, including Judge James Ho of the Fifth Circuit; in the district court, Judge Matthew Kacsmaryk granted a motion for preliminary injunction in the spring of 2023 that would have withdrawn the approval of mifepristone, reasoning that the statute plainly declares “nonmailable” anything “advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.”

Whether or not the Court or some Justices reach the Comstock claim, Alliance for Hippocratic Medicine is a vehicle for spotlighting Comstock claims that are now asserted in several arenas. Comstock revivalists, including Jonathan Mitchell—who represented Donald Trump before the Supreme Court in the ballot-disqualification case and just won the Deanda case in the Fifth Circuit expanding parental rights over minor access to contraception—argue that the Comstock Act bans the mailing or receiving of any abortion-related item without exception—and thus, that the Comstock Act serves as a backdoor ban on all abortions. “Even though the Comstock law does not ban abortion literally,” Mitchell has explained, “it bans the shipment or receipt of any abortion-related equipment,” and no abortion takes place in the United States without some item sent in the mail. Mitchell and his colleague, the preacher Mark Lee Dickson, have written the Comstock Act into local ordinances they describe as creating “sanctuary cities for the unborn.”

Comstock has also come to play a significant role on the campaign trail. Antiabortion figures close to Donald Trump had made the Comstock Act the centerpiece of a presidential transition plan, The Mandate for Leadership, led by the Heritage Foundation and developed by more than 70 conservative groups. Under Trump, explains the Mandate for Leadership, the Department of Justice should prosecute drug manufacturers and providers who supply abortion pills. Mitchell has been clear that the Comstock Act could be transformed into the abortion ban that the antiabortion movement could never convince the American people to enact. “We don’t need a federal ban,” Mitchell recently told the New York Times, “when we have Comstock on the books.”

In an article forthcoming in the Yale Law Journal, we provide a legal history of the Comstock Act. We cover the drafting, enactment and evolving enforcement of the obscenity statute over decades when the postal service was the nation’s primary network of communication, well before modern understandings of the First Amendment. We first show how Comstock censorship of speech and things in the United States mail and other media provoked conscientious objection and popular resistance, and then demonstrate that the public’s response to this censorship, called “Comstockery,” played an important role in germinating our traditions of free speech and of sexual and reproductive freedom. The article offers critical resources for evaluating claims for revived enforcement of Comstock now asserted in courts and in politics.

We challenge revivalist claims now advanced in the courts and on the campaign trail on two grounds—contesting claims about the law’s meaning and its democratic legitimacy. First, unlike revivalists, we demonstrate that the meaning of procuring or producing abortion was not plain or absolute at the time of enactment or today. The statute was an innovative form of obscenity law whose meaning was underdetermined at enactment and evolved dramatically over time, diverging widely from the abortion ban advocates construct today. In a history that ranges over debate about dildos, condoms, and medical texts on the symptoms of venereal disease, we show that the Comstock provision censoring “any article or thing designed or intended for the prevention of conception or procuring of abortion [or] any article or thing intended or adapted for any indecent or immoral use or nature” was concerned about suppressing illicit sex, not about obstructing access to needed medical care—as courts ruled in increasing numbers, culminating in the widely cited and reported appellate decisions of the 1930s. Our reading of the Comstock law’s enactment text and history offers another important perspective on the authority of the 1930s decisions whose congressional ratification the Office of Legal Counsel Memo demonstrates.

Second, we show that there are deep problems of democratic legitimacy in reinventing the Comstock Act as a twenty-first century abortion ban. The public’s view of the obscenity statute as Comstockery—as illegitimate—led to the statute’s declining enforcement and evolving interpretation in the 1930s. Arguments for revival, especially textualist claims that disparage the significance of the statute’s historical context, misread the statute and assume the Comstock statute’s democratic legitimacy: they reason about the law as if it were duly enacted by a democratically legitimate body and that the public had ordinary opportunities for debate over its enactment, revision, and repeal.

Comstock’s history shows the deepest problems with reviving enforcement of the law is that the law was not enacted or enforced in conformity with any of the presuppositions of contemporary democracy. There is the fundamental fact that only a minority of adults were entitled to vote on the statute’s enactment, and that those whose lives would be the most affected by the law were the least able to shape its terms. But this is hardly the Comstock’s law’s only democratic legitimacy problem.

Aggravating women’s exclusion from deliberation over the law’s passage is the government’s long running effort to prevent women and men from securing the law’s repeal. Unlike other laws enacted under voting restrictions we would today call unconstitutional, this statute was insulated from criticism and repeal by generations of censorship and surveillance whose effect was to deform the democratic political process for generations after. Federal appellate decisions interpreting the contraceptive and abortion provisions of the Comstock Act exerted authority both because they were rooted in a fair reading of the federal obscenity statute and in deep public support forged in popular conflict over the statute’s enforcement.

Our article uncovers in conflicts over Comstock’s enforcement popular claims on democracy, liberty, and equality in which we can recognize roots of modern free speech law and the law of sexual and reproductive liberty lost to constitutional memory. Understanding Comstock’s history allows us to tell a different story about the origins of cases like Roth, Griswold, and Roe, one that reaches back to the men and women resisting the state’s efforts, under Comstock, to control political speech and the sexual and reproductive lives of the American people—a story that gives new meaning to American traditions of liberty and democracy. If there is any feature of the Comstock story that warrants reviving, it is the voices of these forgotten authors of our constitutional present.

Reva Siegel is Nicholas deB. Katzenbach Professor of Law at Yale Law School. You can reach her by e-mail at reva.siegel@yale.edu.

Mary Ziegler is Martin Luther King Jr. Professor of Law at U.C. Davis School of Law. You can reach her by e-mail at mziegler@ucdavis.edu.

Posted 12:30 PM by Guest Blogger [link]