Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It

82 Pages Posted: 18 Mar 2024 Last revised: 19 May 2024

See all articles by Reva Siegel

Reva Siegel

Yale University - Law School

Mary Ziegler

University of California, Davis - School of Law

Date Written: March 16, 2024

Abstract

In the aftermath of the overturning of Roe v. Wade, the antiabortion movement has focused on a new strategy: transforming the Comstock Act, a postal obscenity statute enacted in 1873, into a de facto national ban on abortion. Claims on the Comstock Act have been asserted in the medication abortion case now before the Supreme Court and in the campaign for the Presidency. This Article offers the first legal history of the Comstock Act that reaches from its enactment to its post-Dobbs reinvention, offering critical resources for evaluating claims for revived enforcement of Comstock that are now being asserted in courts and in politics.

The Article's history undermines revivalists’ claims about the Comstock statute’s meaning and the democratic legitimacy of its present-day enforcement. Yet the Article’s significance is constitutional as well as statutory. It uncovers in conflicts over Comstock’s enforcement popular claims on democracy, liberty, and equality in which we can recognize roots of modern free speech law and the law of sexual and reproductive liberty lost to constitutional memory. Recovering this lost history changes our understanding of the nation’s history and traditions of sexual and reproductive freedom.

Keywords: Comstock Act, Dobbs, Roe, Griswold, substantive due process, contraception, abortion, birth control, democracy, textualism, democratic legitimacy, constitutional memory, history and tradition, sexual freedom, reproductive rights and justice

Suggested Citation

Siegel, Reva B. and Ziegler, Mary, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It (March 16, 2024). Yale Law Journal, Forthcoming, Yale Law School, Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=4761751

Reva B. Siegel (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

Mary Ziegler

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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