Harsh Anti-abortion Laws Are Not Empty Threats

The Supreme Court overturned Roe v. Wade more than a year ago, but in the time since, the number of abortions performed nationwide seems to have gone up, not down. And not just in blue states—even in red states where abortion has been banned, some sizable percentage of people can and do travel out of state or get abortion pills in the mail.

[Read: Dobbs’s confounding effect on abortion rates]

The anti-abortion movement is—no surprise—committed to stopping this flow of patients and abortion pills across state lines. One strategy that has recently emerged is an effort to revive and reinterpret the Comstock Act, a 19th-century anti-vice law that the movement claims makes sending or receiving any abortion drug or device in the mail a federal crime. Other approaches are proliferating. In Alabama, the attorney general has vowed to use existing state conspiracy law to prosecute residents for helping others seek abortions out of state. And in Texas, several counties passed an ordinance allowing anyone to sue a person driving on local highways who is bringing a patient to get an abortion, whether illegally in Texas or legally elsewhere.

Putting questions of constitutionality aside, how will these strategies even work? How would an abortion foe—or federal prosecutors trying to enforce the Comstock Act—know what was in a sealed envelope in someone’s mailbox? How would an activist aiming to sue under the Texas ordinances know why any individual was driving on the interstate? Alabama’s attorney general, for example, doesn’t have an obvious way to identify people helping their friends and family travel out of state for abortion.

But enforcement challenges do not mean that these approaches are empty threats, intended to create a climate of fear but no actual prosecutions or prison sentences. Instead, the likely outcome is arbitrary and unfair enforcement, reliant on informants with personal grudges and a network of grassroots activists. This is apparent in the history of the Comstock Act, which made it a federal crime to mail or receive items deemed to be “obscene, lewd, lascivious, indecent, filthy or vile.” How the Comstock Act was enforced in the first 40 years of its existence is very much a roadmap for the enforcement of many seemingly unenforceable anti-abortion measures today.

The Comstock Act had sweeping potential when it passed in 1873, able to be interpreted to cover information, drugs, and devices related to abortion or contraception, as well as anything else deemed obscene. But in the 19th and early 20th centuries, law-enforcement officers and postal inspectors didn’t have access to the reams of digital data available today. Catching those who published newsletters or put information on the outside of an envelope was easy; most people sending abortion or contraception materials quickly learned to use sealed envelopes. And to open an envelope, investigators needed a warrant.

But anti-vice crusaders found two ways around this problem. First, they tapped into a network of tipsters and detectives—people who deceived potential abortion providers, pretending to be patients or their loved ones to gather evidence for potential prosecutions. Anthony Comstock, a former dry-goods salesman and anti-vice activist who lobbied for the law named after him (and who became a special agent for the U.S. Postal Service in enforcing the act), perfected the art of decoy letters and disguises, looking for evidence that could be turned over to postal inspectors or police.

Second, they relied on personal vendettas and animosities: angry ex-lovers, controlling husbands, business rivals, and others who used the law for their own ends. Countless people weaponized the law in their own personal conflicts. Victorians who sent “vinegar valentines,” cards that insulted or humiliated their targets, were turned in for Comstock violations. So were men who harassed women, a flirting couple who arranged potential rendezvous, and wives who wrote angry letters to their husbands’ mistresses.

[From the May 2022 issue: The future of abortion in post-Roe America]

Some abortion opponents may try similar strategies now. In 2021, Texas Right to Life operated a tip line for violations of Senate Bill 8, which in September of that year became a state law allowing any individual to sue abortion providers or those who assisted an abortion seeker for at least $10,000 per procedure. (The site was quickly spammed by TikTokers and ultimately taken down by the web-hosting company GoDaddy.) Less formal surveillance networks are also emerging. Crisis pregnancy centers—facilities that discourage abortions—gather information from clients that privacy experts warn could be shared with activists or angry family members interested in filing a lawsuit. The law has become a weapon in private disputes too. Jonathan Mitchell, one of the architects of S.B. 8, is representing a husband suing his ex-wife’s friends for allegedly helping her get abortion pills.

In the past, these tactics led to arbitrary enforcement, with the privileged sometimes escaping scrutiny. In perhaps the most grotesque example, while postal inspectors pursued charges against others selling birth control, Samuel Colgate, a tycoon and patron of Comstock’s, was never arrested, even as his Colgate company (falsely) marketed Vaseline as a contraceptive. Congress repealed the contraceptive provisions of the Comstock Act in 1971, but uneven—and often unfair—enforcement of the provisions that remain is likely to come if abortion opponents successfully resurrect it.

The more that off-the-wall anti-abortion tactics proliferate, the easier it is to dismiss them as scare tactics. But that might not be the case at all. Any law can be enforced if enough people take part in rustling up offenders. Of course, the Supreme Court could be hostile to the anti-abortion activists’ new enforcement strategies, striking down laws limiting travel or rejecting conservatives’ interpretation of the Comstock Act. But this Court may not. The majority’s conservative leanings are clear, and many of the legal areas at issue are undeveloped enough to leave room for a sympathetic justice to side with abortion opponents. If that comes to pass, then the laws’ “unenforceability” can’t be counted on to protect anyone.