WASHINGTON – Several national publications reported this week on widespread concern among free speech advocates after U.S. Supreme Court Justices Samuel Alito and Clarence Thomas repeatedly invoked the infamous segregation-era law, the Comstock, during a hearing Act, which formed the cornerstone of American censorship of sexual material. from 1870 to 1970.
With headlines like “Alito and Thomas kept bringing up Comstock. That Scared Abortion Rights Supporters” (Washington Post), “Fear Grows Over Comstock Act, Justices Thomas, Alito” (The Hill), “Two Supreme Court Justices Back 1873 Zombie Act to Ban Abortion — Justices Alito and Thomas just lent credibility to the Christian Right’s attempt to revive the Comstock Act” (The National Review), the articles highlight concerns about the dormant statute, which has never been formally repealed even though it has rarely been enforced in modern times.
Alito and Clarence Thomas repeatedly invoked the Comstock Act on Tuesday amid arguments over access to the abortion drug mifepristone, “pressing advocates over whether the 1873 federal law should apply to abortion drugs available today.” mail is sent,” writes the Washington Post. reported. “Alito rejected the Biden administration’s argument that the law is outdated — it hasn’t been enforced in nearly a century — with the conservative justice insisting that Food and Drug Administration officials should have taken the law into account when expanding access to mifepristone by mail in 2021.”
Leah Litman, a law professor at the University of Michigan, told the Post, “If you hear the justices asking questions repeatedly, that’s certainly something they’re interested in,” and “bizarre” to propose that the Comstock Act be removed from the Victorian era should come into effect in 2024.
The hill noted Alito argued that the Comstock Act is not a “complicated, obscure law,” adding that “the 151-year-old law prohibited the transmission of material deemed ‘obscene, indecent, [or] lascivious’, which includes things like contraception, abortion drugs and pornography.’
Legal experts like Litman, The Hill explained, “are concerned that Thomas or Alito — or both — could write a Comstock-targeted opinion arguing that the law is viable. Such a view could encourage a future Republican administration and anti-abortion groups to move forward with plans to enforce the Comstock Act in ways that have not been enforced before.”
The National Review offered context on why the Comstock Act is being revived by the Court’s two of the most ardent conservative ideologues.
“Anti-abortion groups have repeatedly raised the question in recent years whether the Comstock Act implicitly bans the shipment of abortion drugs in its blanket ban on the shipment of ‘obscene’ material,” the National Review explained, adding that the most The infamous 19th-century morality law “is named for an anti-vice crusader who died in 1915, in the middle of a trial under the law, and was mocked for his ‘crusade’ against obscenity on the front page of The New York Times. ”