Anti-abortion activists across the United States are convinced that a 19th-century anti-vice law could hold the key to banning abortion nationwide. Their strategy could be put to the test this week.
On Wednesday, the New Mexico supreme court will hear arguments in a case over local ordinances passed in the towns of Hobbs and Clovis, in the east of the state, as well as the nearby Lea and Roosevelt counties. All four localities have passed similar ordinances claiming that the Comstock Act, an 1873 law meant to target vice, bans the mailing of abortion-related materials. The ordinances also effectively ban abortion in the four areas overall, prompting New Mexico’s attorney general to ask the supreme court to strike them down.
“Because those ordinances violate state law, our office had to get involved,” Aletheia Allen, solicitor general in the New Mexico attorney general’s office, said . “It flies in the face of what they’re allowed to do procedurally, as local governments. They’re just not allowed to regulate in this area, which is healthcare and medical licensing.”
But while the New Mexico attorney general’s office is arguing that the localities’ ordinances violate New Mexico law and its protections for abortion, anti-abortion activists are hoping to ultimately make a much bigger play. They believe that the Comstock Act trumps any state-level abortion laws – to the point that the it could result in a total abortion ban across the US.
“These ordinances – they don’t explicitly outlaw abortion. They’re de facto abortion bans. They’re simply requiring compliance with federal statutes,” said Mark Lee Dickson, who has made a career of traversing the country and urging localities to pass anti-abortion measures. “And people are leaning upon them because that is the strongest argument that exists in terms of the federal law, that can be used to see abortion come to an end in every state in America.” Dickson has championed the New Mexico ordinances and plans to attend arguments on Wednesday.
Named for anti-vice crusader Anthony Comstock, the Comstock Act originally banned “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance” from being mailed, including “every article or thing designed, adapted, or intended for producing abortion”. Its scope narrowed by years of litigation and its ban on abortion-related materials rendered meaningless by Roe v Wade, the Comstock Act was long regarded as a relic of a past, prudish era. But that ban was never formally repealed.
After the US supreme court struck down Roe v Wade last year, some anti-abortion activists began to insist that the Comstock Act, by federally banning the mailing of abortion-related materials, was back in effect. Since abortion clinics rely on the mail to receive the medical equipment necessary for their work, a ban on mailing abortion-related materials would effectively stop them from operating.
Beyond citing it in the ordinances in New Mexico, anti-abortion groups are pursuing a number of other avenues in their efforts to revive the Comstock Act. References to the law have surfaced in an anti-abortion coalition’s lawsuit seeking to suspend the Food and Drug Administration’s approval of a major abortion pill. They also appear in an association of attorneys generals’ warning to pharmacies not to dispense the pill, and in a wrongful death lawsuit filed in Texas by a man who accused his ex-wife’s friends of helping her get an abortion. (The FDA case is now before the US supreme court, which has not yet said whether it will formally take up the case.)
Abortion foes are hoping a court bites.
“Clearly a lot of people with power in the anti-abortion movement think that the Comstock Act is really important,” said Mary Ziegler, a professor at the University of California, Davis, School of Law. “They really want the conservative US supreme court to take their side in interpreting it, and they’re just throwing up lots of opportunities.”
The Biden administration’s justice department has publicly said that it’s not illegal to mail abortion-related materials as long as the sender doesn’t intend to violate the law, guidance that’s in line with several past courts’ interpretations of the Comstock Act.
New Mexico is a haven for abortion seekers fleeing bans in other southern states. In the year after Roe’s demise, providers there performed an average of 700 more abortions each month compared with the months before, according to research from the Society of Family Planning.
Several abortion clinics that were forced to close in states that enacted bans have also relocated to New Mexico. At least one, Whole Woman’s Health, initially considered moving to the area around Hobbs and Clovis, because it is close to the border between New Mexico and Texas.
Legal experts told the Guardian that it’s unlikely that this particular case in New Mexico will serve as the justification to revive the Comstock Act. Not only is the New Mexico state supreme court stacked with Democrats, but none of the localities that passed ordinances have an abortion clinic – so it’s unclear why it needs to be resolved in court in the first place.
Allen, the solicitor general, disagreed. There is a live controversy, she said, that affects the future of abortion rights in the state.
“Even though there’s not currently a clinic perhaps in those four local government areas, one couldn’t be established with the ordinances in place,” Allen said. “It also creates – and I think we know this and we’ve seen this and we’ve heard a lot of people talking about it – a lot of fear. That’s a live issue. We don’t want our own residents in our own state afraid to seek necessary healthcare because of some local ordinance that shouldn’t exist.”
