Dickson,
Mitchell’s partner in Comstock, told Littlefield that such ordinances were “de
facto” bans on abortion, achieved by prohibiting clinics use of the mail. “If an abortion facility
cannot receive abortion-inducing drugs or any abortion paraphernalia,” he
explained, “then how can they perform abortions?” In towns and counties that
had adopted one of Mitchell and Dickson’s ordinances, clinics that were
otherwise providing abortion in accordance with the state’s laws could now be charged
with violating this new ordinance. Dickson told NPR in early 2023 that “Anthony
Comstock would be pleased at how this law that bears his name is being used,
because if he was alive today, he would be disgusted.”
At
the same time as Mitchell and Dickson were pushing these new de facto
abortion bans, anti-abortion groups took up the Comstockian cause with equal
fervor. “Now, with Roe off the table,” Eleanor Klibanoff reported for The Texas Tribune,
they are turning to the courts, hoping one might “affirm that Comstock is good
law and can be applied broadly.” In the case Alliance for Hippocratic Medicine
v. U.S. Food and Drug Administration, filed a few months after Dobbs, the Christian
right group Alliance Defending Freedom, or ADF, challenged the FDA’s approval
of mifepristone, a drug commonly used in abortion. The group called mifepristone a “dangerous,
chemical abortion drug,” contrary to two decades of research.
ADF
also hearkened back to the Comstock Act, claiming the FDA’s approval of
mifepristone violated the Act’s prohibitions on using the mail to send
abortion-causing drugs. The Department of Justice in December 2022 issued a memo countering this argument, stating
its current availability by mail was not a Comstock violation because Comstock applies
only if pills were sent “unlawfully.” In March 2023, before the US District
Court for the Northern District of Texas, ADF attorney Erin Hawley argued, “The Comstock Act plainly
prohibits the mailing of drugs that are designed, manufactured, or intended for
use as abortions.”