Repealing Comstock

Comstockery by Professors Reva Siegel and Mary Ziegler presents an important intervention into one of the most pressing abortion issues after Dobbs v. Jackson Women’s Health Organization: the revival of the Comstock Act, an 1873 obscenity law that makes mailing anything that “produces” an abortion a federal crime. As much as we are convinced by Professors Siegel and Ziegler’s argument that the unqualified language banning mailing items that can be used to “produce abortion” never applied to abortions provided by a physician, we are not convinced that some members of the current federal judiciary will take up their detailed historical analysis when it comes to reading an archaic statute. We support the lasting solution to the problem Comstock poses: repeal.

To make this case, this short response to Comstockery proceeds in three parts. First, we review why Comstock is a pressing issue and how Comstockery responds to this urgent matter. Second, despite agreeing with the analysis in Comstockery, we posit that Dobbs and the recent case of FDA v. Alliance for Hippocratic Medicine teach us that we cannot rely on the federal courts to apply both the history and interpretation of the Act that Comstockery so masterfully illustrates. Third, we argue that the only way to foreclose the radical reinterpretation of the Comstock Act is to repeal it. We conclude by explaining that while we wait for the conditions in which repeal will be possible, we must educate and vote as if Comstock is the threat the revivalists say it is.