Access to Life- and Health-Preserving Care - A History and Tradition

Guest Blogger

Reva Siegel and Mary Ziegler 

We have just posted a revised draft of Comstockery, the first legal history of the Comstock Act since antiabortion lawyers have attempted to transform it into a de facto national ban on mailing abortion-related items. Our draft challenges the claim that the obscenity law is a plain-meaning, no-exceptions, national ban by tracing health-based access to reproductive care over the life of this statute. The history we excavate in fact bears on arguments in two abortion cases now before the Court —Food and Drug Administration v. Alliance for Hippocratic Medicine and Moyle v. United States and Idaho v. United States. As we discuss in the new draft and in forthcoming work, interpretation of the Comstock Act provides a window on this nation’s history and traditions, in ways that concern both abortion cases the Court will decide this term.

Most prominently, claims on Comstock have been raised in Alliance for Hippocratic Medicine. In oral argument most of the justices seemed convinced that the plaintiffs lacked standing to challenge the FDA’s approval of mifepristone, a drug used in more than half of all abortions. But Justices Thomas and Alito asked a series of questions about plaintiff’s argument that the Comstock Act operates as a de facto ban on mailing abortion-related items. Comstock revivalists argue that the remaining text referring to “producing abortion” unambiguously covers all abortion. At oral argument, Justices Thomas and Alito seemed open to this interpretation of the statute. 

Comstock’s history also speaks to Moyle and Idaho, Supreme Court cases that address whether the federal Emergency Treatment and Labor Act preempts Idaho’s Defense of Life Act. Idaho and its amici have increasingly stressed constitutional values in the background of this statutory case. Idaho, for example, contends that the United States’ interpretation of EMTALA is irreconcilable with “the Spending Clause and the Tenth Amendment's promise of dual sovereignty.” Amici, pointing to language in EMTLA referring to “the unborn child,” invoke constitutional questions about fetal personhood under the Fourteenth Amendment. Justices asked questions about both these topics, so that during oral argument it appeared that there were constitutional considerations only on one side of the debate. 

But Comstock’s history suggests that there are countervailing constitutional considerations. Our history shows that concerns with emergency care do appear in the text of the Comstock Act as enacted and amended, even if revivalists ignore them. We demonstrate that the statute’s original language discussing the mailing of items for “procuring of abortion” referred to a crime requiring a proof a termination performed for unlawful purposes, and was traditionally understood to exclude a physician’s attempts to save a pregnant woman’s life. There is more. Judicial interpretation of the Comstock Act in the years immediately following enactment interpreted its ban on mailing obscenity in ways that consistently shielded the doctor-patient relationship. Even judges embracing the Victorian interpretation of the obscenity statute assumed that the Comstock Act could not be enforced against physicians and patients communicating with one another about questions related to life and health. In both the context of Comstock and state abortion bans, physician discretion appears to have played a critical role in determining what qualified as a health justification for reproductive health care. 

By the early twentieth century, demand for condoms seems to have destabilized physician discretion as a constraint for health-based access under the Comstock Act. The spread of over-the-counter access to these contraceptives thus reflected both intense concern about venereal disease and the growing expectation that men could express themselves sexually without other men’s permission. “Health” and “hygiene” also became euphemisms for access to birth control and even abortifacient drugs for women. Decades of popular resistance to maximalist interpretations of the obscenity law—which its critics dubbed “Comstockery”—led to judicial decisions in the 1930s freeing interpretation of the statute of Victorian views that all sex is obscene and recognizing that an obscenity law did not criminalize healthcare. These decisions recognized that there were legitimate purposes for mailing articles for contraception and abortion and communications concerning either one—not only among doctors and between doctors and their patients—but as the condom example first established, amongst a wide swath of the American public, including intermediaries and interested third parties. We read these statutory cases as expressing shifting understandings of the First and Fourteenth Amendments that the Supreme Court would begin to recognize several decades later. 

This Ngram of “Comstockery” shows how public debate informed judges’ understanding of the text of the statute and of the Constitution:

Struggle over the Comstock Act thus provides a window on history and traditions that the Roberts Court deems central to the Constitution’s interpretation today. The obscenity statute’s enforcement and interpretation over a 150-year span reveals the kind of deeply rooted national tradition of which Dobbs spoke, even if Dobbs never addressed the Comstock Act or concerns about criminalizing life- or health-preserving care. As importantly, the wide variety of evidence the article surveys also supports new methods of ascertaining the nation’s history and traditions. We demonstrate how shifts in case law interpreting the Comstock Act responded to the arguments of Americans who otherwise lacked authority to make law—and in the process, show that statutes are not the only or best evidence of the nation’s history and traditions—and may even provide a misleading basis on which to draw inferences about those traditions for constitutional purposes today. While the justices presiding in the EMTALA cases seemed attuned to constitutional considerations of federalism or fetal personhood, they seemed blind to the potential constitutional ramifications of forcing pregnant women to be airlifted to hospitals in neighboring states for life-preserving care.

Although this post has focused on developments within the Court, debate over the Comstock Act has unfolded in other democratic constitutional arenas. Since antiabortion groups began promoting an interpretation of the law as a de facto national ban on abortion, former officials in the Trump Administration, many with ongoing ties to the former president, have promised that in a second Trump term, the Department of Justice would enforce the Comstock Act at least against abortion providers and drug manufacturers who mail mifepristone. Trump has embraced the argument that abortion is completely up to the states, and yet despite persistent questioning from the press has refused to clarify his position on whether the Comstock Act is a national ban—suggesting he or his surrogates are still in fact planning to enforce it as one.

Reva Siegel is the 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 the University of California, Davis School of Law. You can reach her by e-mail at mziegler@ucdavis.edu.