Comstock Act: How does it fit in the abortion debate? - Albuquerque Journal

Comstock Act: How does it fit in the abortion debate?

Editor’s note: In the nine months since Roe v. Wade was overturned, New Mexico has emerged as a safe haven for those seeking abortion. The Journal published a series about abortion access in the state. The first can be found here and the second can be found here and the third can be found here.

The local ordinances pertaining to abortion access that passed in five jurisdictions across eastern New Mexico are rooted in a 150-year-old law called the Comstock Act that prohibits the sending of “obscene material” through the mail.

That specifically includes anything “designed, adapted, or intended for producing abortion.”

Because of that, Clovis City Commissioner David Bryant stressed that the ordinance he and his fellow commissioners passed was not an “anti-abortion ordinance,” but instead merely mandates that any business applying for a license would have to adhere to the federal law as laid out in the act.

He added that no one has yet applied to open an abortion clinic in Clovis.

Rep. Linda Serrato, D-Santa Fe, who sponsored state HB 7 prohibiting jurisdictions from restricting access to reproductive health care, said abortion opponents basing their legal arguments on the Comstock Act were “reaching.”

“Providing health care is outside of the realm of the Comstock Law and I think we’ve seen that a lot of times in case law,” she said. “I’m very confident in what we’ve crafted that they would not have a real legal leg to stand on.”

The 1873 law is named for Anthony Comstock, who the U.S. Department of Justice called “a prominent anti-vice crusader who believed that anything remotely touching upon sex was … obscene.”

In December, the Department of Justice issued an opinion for the U.S. Postal Service that said the law does not prohibit the mailing of medication intended to induce an abortion as long as the sender is not intending that the medication will be used unlawfully.

“There are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law,” the opinion states. “Therefore, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.”

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