Anti-Abortion Strategies Center on 19th Century Federal Law 

Anti-abortion activists are using a more than 150-year-old federal obscenity law to undermine reproductive rights — even in states where abortion is legal. And state courts are already playing a prominent role in determining how the law applies alongside state abortion protections.

After the Supreme Court overturned Roe v. Wade in 2022, activists opposed to abortion argued that the Comstock Act, which includes references to “every article or thing designed, adapted, or intended for producing abortion” in a broader text, could be understood as a ban on mailing or receiving any abortion-related item.

Comstock Act claims have since figured prominently in challenges to mifepristone, a drug used in the majority of abortions. And anti-abortion leaders have grander plans for the act, arguing it can be used as a de facto national ban on mailing or receiving any abortion-related drug, information, or paraphernalia — an interpretation stricter than anything Congress would pass today.

A Brief History of the Comstock Act

Passed in 1873, the Comstock Act was an obscenity law used to ban the mailing of everything from medical textbooks to great works of literature. Part of the statute referred to items for “the prevention of conception, or procuring of abortion,” and listed them among other items for “indecent or immoral use.” The Comstock Act also encompassed “giving information, directly or indirectly” about how to obtain any of the prohibited items.

Activist Anthony Comstock and his allies included abortion not primarily because they were concerned about fetal protection, although Comstock himself did occasionally use fetal-protective language. Instead, they believed that both abortion and contraception made it more likely that Americans would engage in sex outside of marriage, or even marital sex for nonprocreative purposes.

Even in the 19th century, enforcement of the Comstock Act was not absolute: When defendants wrote books for general audiences about contraceptives or abortifacients or when non-physicians advertised and mailed abortion drugs, prosecutions sometimes moved forward. But courts often stressed that the statute exempted direct communications between physicians and their patients. By the 1910s, enforcement of the statute’s abortion provisions, which had never been particularly common, all but dried up, and Congress removed references to contraception in 1971.

Harnessing the Comstock Act for State-Level Abortion Restrictions Today

President Donald Trump has been cagey about whether his Department of Justice will issue fresh guidance on the Comstock Act — which could adopt anti-abortion leaders’ interpretation of the statute — or enforce the law against those who mail or receive abortion-related items. The uncertainty has inspired anti-abortion strategies that don’t rely heavily on the Trump administration.

For example, Americans United for Life, a prominent anti-abortion group, has encouraged state attorneys general to use state RICO laws, which target organized crime and conspiracies, to go after anyone involved in providing an abortion. The federal RICO law allows for enhanced criminal charges if a defendant has committed at least two crimes drawn from a list of 35 — so-called predicate offenses — over the course of a 10-year period if these crimes relate to a “criminal enterprise.” State RICO laws, while based on the federal statute, sometimes vary in their particulars, but likewise require proof that a defendant commit a requisite number of predicate offenses that constitute a criminal enterprise. Violation of the Comstock Act, urges Americans United for Life, could be the predicate offense under state law.

Another anti-abortion strategy suggests that any mailing that violates the Comstock Act also violates state consumer protection laws, because a mailing that violates federal law should necessarily be considered illegal and deceptive under state law. There are no cases in the pipeline in this vein, but it’s likely just a matter of time. In 2023, several state attorneys general signaled their openness to this strategy, threatening Walgreens and CVS with legal action if they stocked abortion pills in brick-and-mortar pharmacies.

One tactic has already sparked litigation: The explicit incorporation of the act into local abortion restrictions in states where the procedure is broadly legal. Called the “sanctuary city for the unborn” movement, the plan was designed by anti-abortion activist Mark Lee Dickson and former Texas solicitor general Jonathan Mitchell. It calls for local ordinances to contradict state law on purpose, with the goal of teeing up a clash between protective state law and the Comstock Act — and to force the U.S. Supreme Court to weigh in on how the 19th century law should be interpreted.

Under this theory, the Comstock Act, as a federal statute, would preempt contradictory state laws protecting reproductive rights, and thus would bar the mailing or receipt of any abortion-related item or information anywhere in the country. In other words, Mitchell and his colleagues see the Comstock Act as a de facto national abortion ban. Because this interpretation is far more stringent than anything Congress is likely to enact, the strategy is particularly appealing to anti-abortion leaders.

An Initial Blow to Local Ordinances Incorporating the Comstock Act

New Mexico’s high court just issued the first state supreme court decision considering such local abortion restrictions and unanimously struck them down.

Abortion is legal in New Mexico, and in 2023, Gov. Michelle Lujan Grisham (D) signed a shield law intended to protect providers and other defendants from legal consequences for treating out-of-state patients. State law notwithstanding, two cities passed laws referring to the Comstock Act that purported to criminalize the receipt or mailing of abortion pills. They also enacted detailed licensing requirements for abortion clinics. Later, two counties passed additional restrictions, one adding a mechanism that allowed lawsuits against abortion clinics and another imposing fines on anyone who mails or receives abortion pills or aids or abets those who do.

The New Mexico attorney general filed an emergency challenge to these laws in mandamus, which requests a court to order public officials to discharge their duties. The attorney general further argued that the local ordinances were preempted by the state’s Reproductive and Gender-Affirming Health Care Freedom Act of 2023, along with state laws on medical malpractice, licensure, and health care. Finally, the attorney general also insisted that the ordinances violated the New Mexico Constitution, relying on past precedent interpreting New Mexico’s equal rights amendment to apply to abortion access and even funding. Mitchell defended the ordinances.

The New Mexico Supreme Court first addressed whether mandamus, which is supposed to be an extraordinary remedy, was warranted in the case. The state stressed that the local ordinances were chilling the exercise of protected rights, while the cities and counties responded that the court would benefit from allowing the case to proceed first in district court, where a full record could be developed. The defendants also emphasized mandamus was unnecessary because no abortion providers were based in their cities or counties, and no one was seeking to set up shop.

The court agreed mandamus was an appropriate remedy. The fact that there were no abortion providers within the defendants’ borders was irrelevant, the court wrote, because the ordinances threatened the mailing of pills and thus arguably had an “extraterritorial effect,” thereby “erecting a dragnet of considerable reach that threatens to ensnare patient and provider alike.”

Most of the court’s analysis focused on whether state law preempted the local ordinance. As far as the counties were concerned, the court said municipal power was granted by the state and that state law trumps local law when the two conflict.

The cities, meanwhile, were so-called home rule municipalities, which have some autonomy to act in matters of local concern — but only when state law didn’t expressly limit their power to act. Here, however, the court found that the disputed ordinances went beyond matters of local concern, and were contrary to, and thus preempted by, state law.

The court next held that the Healthcare Freedom Act expressly conflicted with the ordinances. That statute, the court reasoned, was intended to have statewide effect and explicitly prohibited local officials from discriminating against or interfering with protected reproductive rights.

When it came to state law on health care, medical malpractice, and licensing, the court reasoned that the ordinances were implicitly preempted. The ordinances required anyone providing an abortion outside a hospital to get an “abortion license” and comply with the Comstock Act. The court found these ordinances undermined the uniformity mandated by state uniform licensing laws, conflicted with state malpractice laws seeking to establish a minimum standard of care, and clashed with state laws guaranteeing access to health care.

The court mostly set aside the attorney general’s other constitutional arguments, holding only that the defendants lacked the constitutional authority to create private causes of action against abortion providers and those who aided them.

Notably, the court said very little about the role played by the Comstock Act or federal preemption, reasoning neither were central to the disposition of the case. The court’s ruling said there were no significant federal questions decided in the case that would warrant U.S. Supreme Court review.

The Threat Continues

Mitchell greeted the court’s decision enthusiastically, telegraphing his intention to use the ruling as the platform for future federal litigation centered on the Comstock Act. Convinced that the case did involve a significant federal question — how the Comstock Act should be interpreted — Mitchell indicated he believed the New Mexico Supreme Court’s ruling exposed a conflict between state law on the one hand and the federal Comstock Act and local ordinances embracing it on the other. He plans to ask the federal courts — and ultimately the Supreme Court — to settle this conflict, perhaps even in this case.

Mitchell and other anti-abortion activists will not stop in New Mexico. Their movement is pursuing similar ordinances in states that have recently passed ballot measures protecting reproductive rights, like Missouri. Anti-abortion leaders have expressed particular concern about these “mini-Roe” laws, both because they promise to quickly expand access and because their political success has energized supporters of reproductive rights. Abortion opponents see enforcement of the Comstock Act as a quick way to gut the measures.

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Whatever comes next, state courts this year will likely consider bids to use the Comstock Act to limit abortion in states where it is legal — and will shape the interpretation of the Comstock Act and its relationship to state laws protecting reproductive rights. Issuing decisions on a largely blank slate, state courts will have a significant say in how federal courts later approach a law that could transform abortion access in America. Eventually, however, a case pitting the Comstock Act against state law protecting abortion will reach the U.S. Supreme Court. Any resulting decision could undermine or even undo state decisions rejecting Comstock-based anti-abortion strategies.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law.

Suggested Citation: Mary Ziegler, Anti-Abortion Strategies Center on 19th Century Federal Law, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 6, 2025), https://statecourtreport.org/our-work/analysis-opinion/anti-abortion-strategies-center-19th-century-federal-law