The revival of the Comstock Act: "How the end of Roe turned into a threat to American democracy"
“How the end of Roe turned into a threat to American democracy”
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But the idea that Dobbs is leading to any kind of healing ignores the reality on the ground in states, hospitals and courtrooms across the United States. Stories abound of people denied medical care and abortion bans threatening women’s lives. When Oklahoma’s Supreme Court required meaningful exceptions to the state’s bans, the court explained — in chilling detail — how close to death the Legislature could push a pregnant woman under the state’s constitution.
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On closer examination, Dobbs never really embraced democracy in the first place, and especially not a robust, modern concept of democracy that guarantees equality and key liberties.
The court set aside a right that most Americans have favored since the 1970s. Worse, the justices tied the Constitution’s meaning to an era when women were prohibited from voting or practicing law, and when the Comstock Act, a 19th century anti-vice law, was interpreted to prohibit the mailing of abortion or contraceptive drugs or devices, and to criminalize public discussion of controlling reproduction.The court’s holding that laws banning abortion in 1868 must define the nation’s history and tradition of liberty was a fig leaf for giving conservatives what they want
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But the most revealing symbol of the post-Dobbs era is the revival of the 19th century interpretation of the Comstock Act, which is central to the case challenging the FDA’s approval of mifepristone. In the 20th century, courts rejected a sweeping interpretation of the act and held that it prohibited the mailing of birth control or abortion drugs and devices only if intended for unlawful uses. Antiabortion attorneys general, judges and activists want to return to the earlier reading because it could help deliver what voters never would: a nationwide ban on abortion with no exceptions.
The Comstock Act has expressive as well as instrumental appeal for the antiabortion movement, especially abortion abolitionists. Its archaic interpretation reflected a particular idea of “sexual purity” that condemned women for separating sex and reproduction and for controlling the timing of motherhood. Today, the abolitionist movement supports draconian criminal penalties for women who have the procedure, even including the death penalty, and it doesn’t allow exceptions to abortion bans.
**** It is not accidental the Dobbs decision was built on laws enacted in an era when women had few rights and little power to change the law. A 2022 national survey showed that those opposed to abortion tend to have a traditional understanding of gender roles and that stereotypical beliefs about women in general and women who have had abortions in particular are strong predictors of opposition to abortion — stronger even than party identification, gender or religiosity.
Through its reimagined version of the Comstock Act, the right wing seeks to enforce a traditional view of women and their roles, sexual purity and societal control over reproduction, a view that limits what people can say and think, as well as what they can do. In the era of “Don’t Say Gay” mandates and book bans, its reemergence tells us a great deal about what kind of democracy some of Dobbs’proponents have in mind for the years to come.
AUTHORS: Mary Ziegler is a law professor at UC Davis and the author of “Roe: The History of a National Obsession.” Reva Siegel is a law professor at Yale University and the author of the Texas Law Review article “Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism — and Some Pathways for Resistance.”
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