Almost a year ago, when the Supreme Court reversed Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, the court promised that each state would make its own decision on abortion. At the time, a national statute of any kind seemed impossible. Democrats had tried and failed to pass the Women’s Health Protection Act, which would have secured abortion rights nationwide. And once Republicans gained a majority in the House of Representatives, they didn’t try to pass a national abortion ban. Their legislative wish list did not include one, and poll after poll showed that most Americans believed abortion to be a right and wanted it to be legal, especially early in pregnancy.
The antiabortion movement had never wanted the issue left to the states. Since the 1980s, the movement had made sure that the Republican Party platform had a plank endorsing a human life amendment. But in the immediate aftermath of the Dobbs ruling, it seemed that there was little chance that antiabortion advocates could get their wish for a national ban.
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Almost a year after Dobbs, however, the idea of a national antiabortion ban looks less far-fetched. Not because Congress will pass one — it’s not obvious that Republicans will gain control of both houses of Congress in 2024, much less win a majority large or ambitious enough to criminalize all abortions. Instead, the antiabortion movement is banking on a revival of the 1873 Comstock Act by a conservative Supreme Court — and hoping that the GOP primary will produce a candidate committed to reinforcing it.
The Comstock Act was the work of Anthony Comstock, a Civil War veteran horrified by what he saw as an epidemic of debauchery. He returned from the war, became a dry goods salesman, and fixated on eradicating dirty books. He found wealthy patrons in New York, launched the New York Anti-Vice Society, and took his cause to Congress, where he lobbied for a stricter law against the mailing of obscene materials. When Congress passed the law named for him, it even made him a special agent, with the right to carry a weapon and a full-time job guaranteeing the nation’s sexual purity.
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In the law’s early decades, almost everything was seen to compromise the purity of young ladies. Mailing information about birth control or abortion — or even a letter suggesting that the sender knew where to find it — brought on prosecution. Same with sex education manuals, medical studies of venereal disease, and literary works, from Walt Whitman’s “Leaves of Grass” to Geoffrey Chaucer’s “Canterbury Tales.” Even a report by the Chicago Anti-Vice Society was deemed unfit to be mailed because it said too much about vice.
Unsurprisingly, this sweeping interpretation of the Comstock Act produced significant resistance. Starting in the 1930s, courts backed away from a harsh interpretation of the law, concluding that it did not apply to some scientific texts or works of literature and suggesting that it allowed doctors to prescribe lawful abortions and contraceptives. The Supreme Court cast doubt on the constitutionality of parts of the Comstock Act too: first in Griswold v. Connecticut, which recognized a right for married couples to use contraception, and later in Roe v. Wade.
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However, even though Congress recodified the Comstock Act in the 1940s and repealed restrictions on birth control, the act’s ambiguous language on abortion remains in place.
That has captured the imagination of the antiabortion activists who had dreamed up Texas’s bounty bill, SB8, even before the Court overturned Roe. Jonathan Mitchell and Mark Lee Dickson realized that Republicans might not be willing to pass a ban on abortion at any point in pregnancy, but the Comstock Act, which makes it a crime to mail anything “designed, adapted, or intended for inducing abortion,” could be made into a national abortion ban. After all, every surgical or medical abortion relies on things sent through the mail, like scalpels or pills.
There are obvious problems with this strategy: The federal courts have not interpreted the Comstock Act so broadly since the 1930s — and with good reason. Under a sweeping interpretation, could anyone mail surgical gloves? What about drugs that can produce a miscarriage, like the chemotherapy drug methotrexate, or even Advil? And that’s ignoring the political backlash that would greet the resurrection of a broad interpretation of Comstock — one with no exceptions for the life or health of an abortion patient or exceptions for rape or incest, and one that would allow the punishment of women who have abortions.
But none of that matters to many in the antiabortion movement who seek a national ban, no matter how flawed.
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So how could the Comstock Act come to be enforced this way? First, antiabortion lawyers would need to convince the Supreme Court to embrace their broad interpretation. They are trying to do just that in a case now before the Fifth Circuit Court of Appeals. It is challenging the Food and Drug Administration’s authority to approve the abortion pill mifepristone. But the activists are not stopping there. Dickson is traveling the country asking small towns to pass ordinances in progressive states with abortion protections. These ordinances, which refer to the Comstock Act, are designed to set up clashes that could reach the Supreme Court. These cases will keep coming until the Supreme Court weighs in one way or another on what Comstock means.
But would a Republican president use taxpayer money to enforce Comstock, when doing so might be political suicide? The reasons not to are obvious: It would be expensive and deeply unpopular to enforce the Comstock Act, and doing so would hand Democrats a perfect election issue. In fact, a Democratic-controlled Congress could simply repeal the law.
And yet the logic of the GOP primary may make the enforcement of Comstock seem less implausible. For the most part, primary contenders have tried to dodge the abortion question, with one notable exception.
Ron DeSantis, viewed as potentially the greatest threat to Donald Trump, recently hammered the former president for declining to say whether he would sign a ban on abortion after six weeks of pregnancy (something that DeSantis, as governor of Florida, has done). DeSantis, it seems, is going to take a more radical stand on abortion than Trump.
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And the Comstock Act may be an appealing way for DeSantis to set himself apart. He would not have to commit to signing any national law or even describe his ideal policy. He could simply say that he and his Justice Department would enforce the law as he sees it — and signal to social conservatives that he is a more trustworthy choice than Trump. If there is a real competition between Trump and DeSantis, it might push both men to embrace more extreme positions on abortion. And if that happens, antiabortion groups are ready, with arguments about the Comstock Act already teed up.
None of these outcomes is inevitable. The Supreme Court could reject the sweeping interpretation of Comstock that antiabortion groups have offered because it raises constitutional questions, because it contradicts precedent, or just because it would lead to ridiculous outcomes. Republican politicians, aware of what the American people think about abortion, could step back from the brink. But even if a national abortion ban is still a long shot, it could happen. It’s time for everyone, and especially Democrats, to take that possibility more seriously.
Mary Ziegler is the Martin Luther King Jr. professor of law at the University of California, Davis. Her latest book is “Roe: The History of a National Obsession.”