31
votes
The history of the Comstock Act, the 150 year old law conservatives in the US are banking on to ban abortion
Link information
This data is scraped automatically and may be incorrect.
- Title
- The Comstock Act
- Authors
- Grace Haley
- Word count
- 1649 words
OP, this article raises serious issues, but I can't imagine living in a first world country in which basic medical instruments needed to perform a pap smear or do general surgery were banned under the Comstock Act. Some of the claims made toward the end of the article sound so improbable, in legal terms, over broad application, that I had trouble taking them seriously. Edit, I am convinced, that if the most extreme interpretations mentioned became law through court rulings, that all doctors in the country would immediately lobby to get the statute explicitly changed to make a similar ruling impossible.
But yes, this needs defeated, possibly by repealing the Comstock Act altogether.
Edit, in light of discussion down thread, I don't want to totally downplay the possibility of taking speculums or instruments away from abortion providers. However, as a lawyer, my gut reaction is that that would be an extreme interpretation that would see push back from judges asked to rule in its favor. Also as a lawyer, and thus a member of an old profession that defends its traditions and privileges, I am convinced that the vast majority of physicians of all specialties would immediately rally against this and that the public would by and large support the doctors.
Full disclosure, I support Abortion Every Day (the substack linked by OP) financially.
If you read (or listen to) the updates, you'll hear that taking things to the most extreme point is exactly what's happening. Also, a general strategy seems to be to create as much confusion as possible for doctors. The upshot is that in many places, doctors are refusing to treat pregnant women, or are delaying procedures until women are much more ill before performing them. OB/GYN residents are avoiding states with abortion bans.
The whole thing adds a complicating factor for women to a healthcare system that is already difficult to navigate.
I am and have been closely following the news around abortion in the US although I don't know this substack. It's tragic. I don't think we disagree about much related to abortion in the US in the grand scheme of things.
I think you're referring to this paragraph?
they link to an NYT article (archive link) to back that up, specifically this part:
if I understand their argument correctly, they're not saying speculums would be banned entirely, but that shipping a speculum to someone who will use it during an abortion would be illegal.
so essentially, if you're a manufacturer or distributor of medical equipment, it would create a legal liability such that you'd need to verify that every single one of your customers is not an abortion provider, before fulfilling an order.
I view it as another "outsourcing" of the enforcement of abortion bans, along the same lines as the "bounty hunting" provisions of Texas' law. criminal prosecutions of the people who receive abortions turn out to be wildly unpopular. prosecutions of the doctors who provide them isn't much better.
this application of the Comstock Act offers them a sort of backdoor way to ban abortion nationwide, without any of those criminal prosecutions that have such terrible optics. here in Washington state for example, abortion might technically be legal, but any doctor who provided abortions would find themselves unable to order any of the basic medical supplies they need, and would have to try to acquire them through the grey or black market.
Ok, thanks, that makes more sense. However, a gynecologist that also performs legal abortions could easily obtain speculums or surgical instruments for non abortion purposes and then use them however they wish. Even planned parenthood provides general women's health care alongside abortions. I also know that progressive states are going to refuse to cooperate in such prosecutions.
I am willing to be convinced, but I think outlawing medication abortion is a more immediate realistic threat. Also, I stand by my statement that there would be strong pushback against such a draconian interpretation and more swing voters would be alienated and medical professionals would be motivated to actively lobby and protest and publicize the issue.
Again, thank you for the article.
under this extreme interpretation of the Comstock Act - no, not necessarily. if Planned Parenthood orders 1000 specula from Acme Medical Supply Co, and one of them is used for an abortion, that would be enough to violate the law.
and that alleged violation of the Comstock Act would have been committed by Acme, not by Planned Parenthood. because the action that's criminalized is sending the prohibited items through the mail, rather than receiving them.
so if you're the legal counsel for Acme, your position is likely to be "look, we don't agree with the abortion ban, but we have to think about our bottom line, and our responsibility to shareholders, so we can't risk this sort of prosecution. we can't ship any specula to Planned Parenthood or other similar providers, even if most of them will be used for pap smears and other non-abortion uses."
in this hypothetical, they would start with the FBI serving a search warrant on Acme, and probably seizing all of their computers as "evidence", essentially shutting down the entire company's operations. if you're Acme, the threat of prosecution is very real, and to a large extent the outcome of the case doesn't matter, because just being charged, or having a search warrant executed, is hugely damaging to your business.
(this is what I mean by outsourcing enforcement - they're effectively requiring Acme, as a private company, to participate in enforcing the ban, whether they want to or not)
that wouldn't matter. it's a federal law, charges would be brought in federal courts, by federal prosecutors (called "US Attorneys", who are appointed by the President and take orders from the federal Attorney General). local and state officials couldn't do anything other than hold press conferences saying they're opposed to it.
more immediate threat, yes, absolutely, I agree.
but, one thing we've seen consistently is that the opponents of abortion rights are always working multiple angles, fighting on multiple fronts, and thinking in terms of short, medium and long term plans.
for example, they tried TRAP laws. the Texas version of those laws were struck down in Whole Woman's Health v. Hellerstedt in 2016. they tried again, about Louisana's law, in June Medical Services v. Russo in 2020, with the only substantive difference between the two cases that Gorsuch and Kavanaugh had been appointed and they thought they could get a different result.
meanwhile, Dobbs, the case from last year that overturned Roe, was concerning a 15-week ban in Mississippi passed in 2018. like I said, always fighting on multiple fronts, and with a diversity of tactics.
they never rest on their laurels, never say "mission accomplished" or "OK, we've gotten to a reasonable compromise position". their end goal is the complete and total banning of abortion, and they're constantly thinking several moves ahead like an expert chess player.
if they succeed in banning medication abortions across the entire country, we know from experience they will immediately move on to outlawing surgical abortions as well. and with this Comstack Act stuff, they're already spelling out how they want to accomplish that.
this is true...but we already know they don't care. swing voters were alienated by the Dobbs decision. it contributed to Republicans' poor performance in the 2022 midterms. the vast majority of Americans oppose blanket abortion bans. that hasn't stopped them. they're treating it like a religious crusade.
You have shared a lot of information I was familiar with and some more specific to this statute that I wasn't. However, the reason I mentioned pushback from doctors across the country and a disgusted response from swing voters is that I am reasonably confident that the harder these fanatics push for their ideal outcome, the more likely they are to lose at the ballot box and in the minds of the public.
We are hopefully all friends and allies here.
I hope my comment didn't come off as patronizing or condescending; that wasn't my intent. I like to add sources and background info to my comments to make sure they're accessible and understandable by random other people reading the thread and not only the person I'm responding to.
I hope you're right...but I've become a bit of a doomer about electoral politics.
I remember thinking "the fanatics have pushed too hard, and it's going to make them lose at the ballot box" on the eve of the 2016 election, too
absolutely. one of my favorite things about Tildes is that it's possible to have these sorts of discussions without having to deal with people derailing the discussion in bad faith.
I'm making this a second comment to make sure you see it.
Imho, the biggest problem with Hilary Clinton for president was that she didn't have the combination of native political talent and carefully honed expertise that you see in someone like Nancy Pelosi. (There are definitely others as well) We don't have a parliamentary system where convincing a group of insiders that you are the right choice for leader is sufficient.
I'm sorry for touching what may be a still open wound. I know a lot of feminists were deeply invested in Clinton winning and got their hearts broken. But her public image was tarnished by a variety of perceived downsides including being a legacy jumping off of Bill's career. If we are going to break this glass ceiling, we need to be hard headed about choosing a candidate who has in the trenches experience with contested elections and can present as relatable imho.
Clearly no one has a crystal ball, but in 2016 Trump built a coalition that included people who were willing to roll the dice for the Hillary Clinton opponent, for a variety of reasons. Clinton had been subject to unrelenting smear campaigns since she tried to help Bill enact health care. Also mysogyny. Also the email server was publicized to high heaven and compared as unfair treatment vs low level military and staffers with security clearances who would go to prison for much less. She was painted as an out of touch wonk and people love to hate intellectuals in politics.
A large swath of Millenials and Gen Z have been alienated by the anti abortion laws in particular as it impacts them directly and they are less religous than older generations. They are also more likely to sympathize with lgbtq who are being targeted. Gerrymandering is a threat as is an actual fascist coup, but I think our side should have an advantage at the ballot box.
Good talking with you.
fwiw, as someone who actually has regular access to government information systems, I actually did consider the Hillary's Emails thing to be a major demerit. It's not just a case of "old lady use email wrong", but rather the attempting to self-select what they'd produce when the data was demanded and wiping the rest was sketchy, they tried to hide the fact that the server had been attacked and likely breached when they should have notified the FBI to have it investigated (but that would have more broadly revealed its existence), and she could not in good faith claim she was actually ignorant of the requirements for managing the system given that she issued a memorandum to the various embassies and consulates under her leadership telling them to stop doing exactly what she was doing during her tenure.
Was it enough for me to vote for Trump? Hell no. Even then I thought he'd be woefully incompetent and while I tried to suspend my bias and give him a chance when he first took office he just ended up proving out everything I said about him to my Trump-fanatic family members before both 2016 and 2020 elections. But it also wasn't nothing, as is so frequently mocked.
Personally, I also thought it was bad at the time, with far less experience and access than you have. Every political move or moment in a campaign either adds or subtracts voters on the margins and I think this one had an impact.
I was not very familiar with Trump. I vaguely knew that he had background in casinos and that the Apprentice was a show I had never watched. His rhetoric was hateful and offensive, but I had no clue he was so stupid, so narcissistic, so unable to tolerate minor frustration without tantrums.