‘Comstocked’: How Extremists Are Exploiting a Victorian-Era Law To Deny Abortion Access

The 1873 Comstock law prohibits the conveyance of anything used for “the procuring or producing of abortion.” One man believes it’s the gateway to a national abortion ban that even the bluest of states will not be able to evade.

(L-R) Rev. Pat Mahoney, Peggy Nienaber of Faith and Liberty and Mark Lee Dickson of Right to Life East Texas pray in front of the U.S. Supreme Court on April 21, 2023 in Washington, DC. Organized by The Stanton Public Policy Center/Purple Sash Revolution, the small group of demonstrators called on the Supreme Court to affirm Federal District Court Judge Matthew Kacsmaryk’s ruling that suspends the Food and Drug Administration’s approval of the abortion pill mifepristone. (Photo by Chip Somodevilla/Getty Images)

In June 2019, the all-male city council in Waskom, Texas, unanimously voted to make the tiny town of just 2,000 residents the nation’s first “sanctuary city for the unborn.” Characterizing fetuses as the “most innocent among us [who] deserve equal protection under the law,” the ordinance expressly bans abortion within its municipal boundaries. The man behind the ban, anti-abortion zealot and pastor Mark Lee Dickson, has since expanded his campaign to outlaw abortion “one city at a time” into at least six other states.

At first glance, this effort may appear superfluous in the wake of the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which, in overturning Roe v. Wade, ended federal protection of abortion rights. In response to the decision, a growing number of states have enacted outright abortion bans or highly restrictive laws, while others have doubled down on a commitment to keeping abortion legal and accessible.

However, Dickson has crafted a dangerous legal strategy for transforming even abortion-friendly states by resuscitating the Comstock anti-obscenity law from 1873, which prohibits the conveyance of anything used for “the procuring or producing of abortion.” Dickson believes this is the gateway to a national abortion ban that even the bluest of states will not be able to evade.

Making the U.S. a “sanctuary for the unborn”

Although long an adherent to anti-abortion beliefs, Dickson did not join the ranks of activists until 2012, when he began preaching outside the Hope Medical Group for Women, a clinic in Shreveport, La. Seven years later, a rumor that Hope Medical was planning to relocate across the border to Waskom in response to a Louisiana law that tightened restrictions on abortion providers prompted Dickson to launch the sanctuary-city movement.

As Dickson recounted in an interview with The Texan, he wanted to craft a strategy to prevent Waskom from becoming “the mecca for abortions in that area.” He put in a call to Jesse Moore, the town’s mayor, who asked Dickson what could be done to keep the clinic out of his city. As Dickson tells it, the idea of enacting an ordinance outlawing abortion within Waskom just “rolled off my tongue.” Once the ordinance was drafted, however, Dickson describes having “so much weight on my back cuz I’m thinking I don’t want to see this city of Waskom sued into oblivion”—which is exactly what should have happened, given that the ordinance was blatantly unconstitutional under Roe v. Wade’s strict prohibition of previability abortion bans.

Seeking guidance, Dickson texted his senator, who promptly arranged a three-way conference call with attorney Jonathan Mitchell, the former solicitor general for Texas. Mitchell’s conservative bona fides include having served as a law clerk to then-Justice Antonin Scalia and as a volunteer on the Trump presidential transition team. Staunchly anti-abortion, Mitchell submitted an amicus curiae (friend of the court) brief in Dobbs on behalf of Texas Right to Life, in which he denied that women need access to abortion in order to have control over their reproductive lives, arguing instead that they can simply refrain from having sex.

Amber McFadden. (Michele Rosero Schofield)

This story originally appeared in the Fall 2023 issue of Ms. magazine. Join the Ms. community today and you’ll get the Fall issue delivered straight to your mailbox.

During the call, Mitchell proposed that Dickson incorporate a novel legal maneuver into the ordinance, which would protect Waskom from lawsuits. His plan involved upending the ability of a party challenging the law’s constitutionality from seeking what is known as pre-enforcement injunctive relief, which, if granted by the judge, requires the public official charged with enforcing the law to put it on hold until the court issues a final ruling on its constitutionality. To insulate the town from this judicial process (at least while Roe remained the law of the land), Mitchell advised that Waskom’s officials be divested of their power to enforce the ordinance and that this authority instead be delegated to the public at large, who would be incentivized to sue abortion providers and those “aiding or abetting” them with the promise of a cash award. The greatest bounty would be provided to “each surviving relative of the aborted preborn child” to compensate them for the supposed harm caused by the abortion, including any emotional distress. The outsourcing of enforcement authority to private citizens meant there would not be an identifiable party against whom a court order could be entered. Providers would have to risk being sued for performing an abortion in order to challenge the ordinance’s constitutionality.

After being test-driven at the local level, Mitchell’s private enforcement mechanism was subsequently incorporated into Texas’ infamous SB 8, which banned abortion once nascent cardiac activity can be detected in an embryo—typically at six weeks. Declaring themselves flummoxed by the “complex and novel … procedural questions” raised by the law’s self-styled vigilante approach to justice, the Supreme Court’s conservative supermajority allowed this blatantly unconstitutional measure to go into effect prior to their decision in Dobbs. In a biting dissent, the Court’s three liberal justices characterized the private-enforcement approach as a “breathtaking act of defiance,” which transformed citizens into “bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”

Dickson was crisscrossing the state of Texas, visiting some 400 towns en route to his goal of transforming the U.S. into a gigantic “sanctuary for the unborn,” city by city.

Meanwhile, Dickson was crisscrossing the state of Texas, visiting some 400 towns en route to his goal of transforming the U.S. into a gigantic “sanctuary for the unborn,” city by city. He offered communities ordinances that were tailored to meet local needs, along with, as he explained, a “letter from a lawyer which [sic] is willing to stand behind them if any litigation comes as a result.” Of note, Mitchell offered to be that lawyer—at no cost to taxpayers. If a town was particularly fortunate, Dickson’s persuasive efforts might include a demonstration of his “heartbeat bear,” which he claims plays the ultrasound heartbeats of fetuses he has saved from abortion.

Under Dickson’s tutelage, more than 50 Texas towns have enacted ordinances that expressly ban abortion within their geographical boundaries. As Elizabeth Nash, former senior state issues manager at the Guttmacher Institute, explained in a HuffPost article, these ordinances seek to “stigmatize abortion, shame patients and vilify providers.” With the exception of Lubbock, none of these localities has ever been home to an abortion provider. In Lubbock, abortion opponents mobilized to enact the ordinance shortly after the opening of a Planned Parenthood clinic there. A federal court dismissed Planned Parenthood’s lawsuit against the city due largely to the law’s private-enforcement mechanism, and the clinic was forced to stop performing abortions. Rejoicing its success, Texas Right to Life applauded the “Pro-Life Lubbockites who voted to protect the preborn in their city and who continue to demonstrate great courage in standing up to the abortion industry.”

Resurrecting a Victorian-era purity law

Building on his victories in Texas, Dickson has now extended the geographic reach of his sanctuary city initiative into at least six other states, including Illinois, New Mexico, Montana, Nebraska and Ohio. New Mexico—a state that the Guttmacher Institute has characterized as “very protective” of abortion rights—in particular has become a flashpoint in the increasingly high- stakes battle over the future of these ordinances.

In July 2022, prompted by the fear that abortion providers from Texas were planning to relocate across the border into southeastern New Mexico (a notably conservative part of the state), Dickson launched the state’s sanctuary movement at a public meeting in the small town of Hobbs. According to the Texas Scorecard, state Sen. David Gallegos from nearby Eunice pledged to thwart the abortion providers who, he said, were “targeting southeast New Mexico, bringing the fight to my hometown.” He defiantly declared, “We will be doing everything we can to fight the abortion industry in southeast New Mexico and we will not lose this fight!”

Dickson, however, was concerned that the liberal-leaning state would seek to thwart this plan by enacting a law to prohibit municipalities from approving ordinances banning abortion. This is exactly what occurred the following spring, when Democratic Gov. Michelle Lujan Grisham signed HB 7, the Reproductive and Gender-Affirming Health Care Freedom Act, which prohibits “public bodies, including local municipalities, from denying, restricting or discriminating against an individual’s right to use or refuse reproductive health care or health care related to gender.”

Dickson and Mitchell, accordingly, devised a workaround. Rather than importing a Texas-style ordinance containing an explicit abortion ban, the duo instead commandeered the moribund 1873 Comstock law as a vehicle for imposing what Dickson refers to as a “de facto” abortion ban.

Named after anti-vice crusader Anthony Comstock, this Victorian-era purity law was intended to cleanse the nation of sexual corruption by prohibiting the sending of obscene materials, including contraceptives and anything that could be used to cause an abortion, through the mail or by way of a “common carrier,” which today would include, for example, FedEx. Although the Comstock law is undoubtedly a dusty relic from a bygone era, it has nonetheless remained on the books, with the exception of the restriction on contraceptives, which was overturned for married couples by the Supreme Court’s 1965 decision in Griswold v. Connecticut and repealed by Congress in 1971 for everyone else.

Citing the supremacy of federal law, Dickson and Mitchell’s newly minted ordinances are expressly tethered to the section of the Comstock law that makes it a felony to send or receive any “article or thing designed, adapted or intended for producing abortion.” Though it should be noted that a strong argument can be made that the Comstock law, as it related to abortion, was implicitly repealed by Roe.

The model language also calls upon the feds to prosecute offending abortion providers and encourages “victims” of abortion, including “mothers, fathers and surviving relatives,” to sue providers, who are referred to as “racketeering enterprises under the Racketeer Influenced and Corrupt Organizations Act.” This reformulated approach for planting anti-abortion flags in blue states raises the specter of a backdoor national abortion ban by way of blocking the conveyance of essential medications, supplies and equipment—a threat that should not be discounted as the mere fanciful dream of fanatics, particularly given the current composition of the Supreme Court.

A rather insidious irony lies behind this pivot to federal law as a way to gain a foothold in progressive states. Mitchell is quoted in The Nation as saying that he “knew about Comstock before Dobbs, but I wanted to say nothing about it. … I really was hoping no one would say anything about the Comstock laws until Dobbs came out.” Mitchell’s hoped-for cloak of silence obscured the fact that while abortion opponents were urging the Court to return the regulation of abortion to the states, a strategy for a federally secured abortion ban by way of the Comstock law was brewing.

Dickson and Mitchell are hopeful that a case involving one of their ordinances will make its way to the Supreme Court, and that the conservative supermajority will adopt their position that Comstock is still a good law that must be followed by the states. As Mitchell expounded to a town commission meeting in Edgewood, N.M., such a victory “would be a defeat far more catastrophic than Dobbs for the supporters of abortion access. … A ruling of that sort would effectively ban abortion nationwide, making it impossible for abortions to be performed even in blue states. … Because even though the Comstock law does not ban abortion literally, it bans the shipment or receipt of any abortion-related equipment.”

In April 2023, Dickson convened a press conference outside the Supreme Court for the purpose of making a “historic announcement” that he claimed would “impact every state in the nation.” The choice of the venue, of course, was no coincidence, as the Court is the gateway to realizing his dream of a “de facto” nationwide abortion ban. Setting the gears in motion, he announced that earlier that day the tiny city of Eunice (population just under 3,000) had sued the attorney general and governor of New Mexico in federal district court seeking a judgment declaring that with Roe overturned, Comstock was now the “supreme law of the land,” trumping any state constitution or law protecting the right to abortion.

There is no guarantee that the case will ever reach the Supreme Court. The New Mexico Supreme Court recently granted the state’s request for a temporary stay of the lawsuit filed by Eunice while it considers a challenge the state has filed against several other localities with nearly identical ordinances. The state contends that these laws interfere with rights protected by New Mexico’s Constitution, including the state Equal Rights Amendment’s prohibition of sex- and pregnancy-based discrimination.

Of more immediate concern is a case out of Texas. In fall 2022, a Christian legal group, citing the Comstock law, sued the U.S. Food and Drug Administration over its approval of mifepristone, a drug used in medication abortions. The Biden administration has asserted that Comstock does not apply to the mailing of abortion pills in cases where the sender intends for them to be used lawfully. The judge in the Texas case, U.S. District Judge Matthew Kacsmaryk, disagreed. In April, he wrote in a preliminary ruling, “The Comstock Act declares ‘non-mailable’ every ‘article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.’ … Therefore, federal criminal law declares they [abortion pills] are ‘nonmailable.’”

In August, the 5th U.S. Circuit Court of Appeals issued a ruling on the case that would sharply restrict access to medication abortion nationwide—but its decision remains on hold pending a final review by the Supreme Court.

While Mitchell isn’t officially affiliated with the Texas mifepristone case, it certainly aligns with his effort to, as he told The Nation, “get Comstock to the Supreme Court as quickly as possible.”

Underscoring how this arcane law has been weaponized by anti-abortion extremists, Gallegos, the state senator for Eunice, denounced the New Mexico governor and apprised her that “Eunice and New Mexico have had enough of this death culture! … Madame governor, consider yourself Comstocked.”

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Shoshanna Ehrlich is professor emerita of women’s, gender and sexuality studies at the University of Massachusetts Boston. Her books include Who Decides: The Abortion Rights of Teens and the co-authored Abortion Regret: The New Attack on Reproductive Freedom. She is currently collaborating with the Planned Parenthood League of Massachusetts’ ASPIRE Center for Sexual and Reproductive Health on a minors’ abortion rights and access project.