Abortion and the Mails: Challenging the Applicability of the Comstock Act Laws Post-Dobbs

Abstract

The Comstock Act Laws prohibit the mailing and importation of any abortion-related material within the United States. Whatever protection there was against the application of these laws by the government and private individuals from the constitutional right to an abortion was overturned by Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022). Recent trends from the last year show that Republican lawmakers are eager to start enforcing the Comstock Act mailing prohibitions. Pushback from this administration’s Office of Legal Counsel (the “OLC”) suggests that a limiting construction should be read into the Comstock Act Laws so that the prohibition on mailing would apply only to “illegal abortions.” This Note gives an overview of the caselaw, legislative history, and long period of non-enforcement surrounding these statutes. Although this Note’s reading of the caselaw is supported by the limiting construction advanced by the OLC, this Note engages with criticism of this interpretation and ultimately concludes that the Comstock Act Laws are unconstitutionally vague. Enforcement of the Comstock Act Laws is bound to happen imminently. This Note argues that the strongest defense to their enforcement is a vagueness challenge.

Keywords: Comstock, Abortion, Vagueness, Mail