Modern-day ‘Comstocks’ look to police travel, information as another strategy to end abortion

WASHINGTON, DC - APRIL 21: (L-R) Rev. Pat Mahoney, Peggy Nienaber of Faith and Liberty and Mark Lee Dickson of Right to Life East Texas pray in front of the U.S. Supreme Court on April 21, 2023 in Washington, DC. Organized by The Stanton Public Policy Center/Purple Sash Revolution, the small group of demonstrators called on the Supreme Court to affirm Federal District Court Judge Matthew Kacsmaryk's ruling that suspends the Food and Drug Administration's approval of the abortion pill mifepristone. (Photo by Chip Somodevilla/Getty Images)

Mark Lee Dickson says he’s been home maybe once in the two years since the U.S. Supreme Court vanished federal abortion rights in Dobbs v. Jackson Women’s Health Organization.

The 38-year-old director of Right to Life of East Texas in Longview has been on an endless road trip trying to set legal traps for people who are driving someone out of state to get an abortion. The native Texan said he drives from town to town attending pregnancy-center banquets, men’s prayer breakfasts, Republican women’s club meetings, Catholic fish fries and the rodeo, trying to convince local lawmakers and potential citizen petitioners to make their cities and counties so-called “sanctuaries for the unborn,” stretching local law to restrict abortion in as many ways as possible — such as restricting travel and medical waste disposal — to potentially provoke an eventual lawsuit.

“I find myself in a variety of different places, wherever the Lord takes me,” Dickson told States Newsroom.

Many of the pregnant residents in the rural areas Dickson goes to struggle with lack of access to maternal care, but Dickson likens himself to Batman on a vigilante quest to save embryos and fetuses from abortion. Reproductive justice organizers and attorneys who’ve spent the last two years fighting to restore reproductive health care access throughout the U.S. liken Dickson to a reincarnated version of 19th century anti-vice crusader Anthony Comstock, whose eponymous anti-obscenity law Dickson has been wielding as one of many tools to fast-track a national abortion ban.

Two years since Roe v. Wade was overturned and four months away from a presidential election, one of the biggest threats to abortion rights is a federal administration willing to enforce and reinterpret the dormant Comstock Act to criminalize the mailing of abortion-related drugs, medical equipment and information. But abortion providers and advocates say that even without Comstock, monitoring and policing of pregnant women and information is already here, thanks to activists like Dickson, whose proposed city ordinances allow residents to sue anyone suspected of helping someone get an abortion.

“I have a whole lot of friends that spend time on the sidewalks of abortion facilities throughout America,” Dickson said. “And I’ve told these friends, if you ever meet someone from Abilene, Texas, that is seeking out an abortion in New Mexico, use the sanctuary city ordinance as a deterrent as much as you can.”

Rising Comstocks

Dickson’s partner in the endeavor to broadly criminalize abortion in every state, one city at a time, is Jonathan F. Mitchell, the onetime solicitor general of Texas, who is also counsel for former President Donald Trump. Along with these sanctuary cities ordinances, together they helped draft Senate Bill 8, a blueprint for largely banning abortion in Texas in 2021 by authorizing citizens to sue those suspected of providing or assisting with an abortion.

And since Roe fell, they have been pushing a version of the Comstock Act that historians and legal scholars say never existed.

Legal scholars Reva Siegel and Mary Ziegler in their forthcoming article about the old law write that Anthony Comstock was focused on preventing illicit sex and pornography, not on preserving fetal life. The religious zealot was known for bringing dildos, contraceptives, and pornography to testify before state and local lawmakers about the need for anti-obscenity laws.

“The statute is a ban on obscenity, not criminalization of health care,” Siegel, a professor at Yale Law School, told States Newsroom. “And when you listen to the revivalists, they just talk about Comstock as an absolute ban as if it has no exceptions. That’s just not true — in light of the text or the history.”

But that doesn’t really matter to Dickson and Mitchell.

Through their Sanctuary Cities for the Unborn project, Dickson and Mitchell have helped pass approximately 80 ordinances in cities and counties in seven states, mostly in Texas, but also in strategically located cities in abortion-access states, like New Mexico, where a challenge to ordinances that cite the Comstock Act currently awaits a ruling from the state supreme court and could eventually make its way to the U.S. Supreme Court.

Where Anthony Comstock had the financial backing of the YMCA and was elevated to power as a special agent of the U.S. Post Office, the influential conservative think tank Heritage Foundation is pushing Mitchell and Dickson’s version of Comstock in its plan for a potential future Trump administration to go after providers and distributors of abortion pills. Mitchell has received some financial support in 2023 and 2022 from the Christian right law firm Alliance Defending Freedom, which brought the recent abortion pill case before the Supreme Court.

Dickson said he wants these ordinances to go even further, such as opening up lawsuits to rideshare companies. But immediately on the agenda, he said, is to try to use Comstock to challenge state abortion-rights ballot initiatives.

“There are many ways the Comstock Act can be used to help inoculate pro-abortion ballot initiatives in states like Arizona and Nebraska,” Dickson said. “A lot is planned between now and November, I can say that.”

Mitchell, who did not respond to an interview request, is currently defending the right of Texas professors to penalize students who miss class to obtain an abortion. That new lawsuit will be heard by U.S. District Judge Matthew Kacsmaryk, whose opinion last year advanced a challenge to an abortion pill and cited Comstock as a valid argument. Though the U.S. Supreme Court recently rejected the mifepristone case, new challenges to the abortion pill continue, as does increased support for anti-abortion Comstock arguments from federal judges like 5th Circuit Court of Appeals Judge James Ho and Supreme Court Justices Samuel Alito and Clarence Thomas.

Meanwhile, longtime anti-abortion groups like Operation Rescue, which led clinic blockades in the 1980s and 1990s, continue to apply old-school surveillance and monitoring tactics. Based in Wichita, Kansas, president Troy Newman said his group maintains a sidewalk presence at abortion clinics in Wichita, and regularly files public records requests for 911 calls, which they post online. They also publish detailed reports on thousands of abortion providers in the U.S., referring to them as “the abortion cartel.”

Newman told States Newsroom that the goal is not to target women getting abortions, but to report potential abortion-clinic violations in order to shut down clinics that since Dobbs have relocated to states without abortion bans.

“I don’t think we can keep track of them all, but we have people feeding us information on a daily basis,” Newman said.

Siegel and Ziegler argue “comstockery’’ is a threat to democracy, as it depends on suppressing freedom and promoting government censorship. Comstock famously helped imprison women who disseminated information about birth control and abortion, some who later died by suicide.

“Revivalists hope to chill the exercise of rights already recognized in positive law, including state constitutional protections and the right to travel,” Siegel and Ziegler write. “Further, by disparaging reproductive rights and intimidating those who seek to exercise them, Comstock revivalists seek to short circuit an ongoing process of popular constitutional meaning-making that has unfolded in state ballot initiatives, state courts, and grassroots movements.”

Resisting Comstocks

Many legal experts argue that Comstock would be a difficult law to defend even with a partially willing U.S. Supreme Court; however, the effects of even temporary enforcement could rock reproductive health care throughout the U.S. even more than it has since Dobbs. After initial discouragement from national reproductive rights groups, Democrats in Congress this month finally introduced a bill to repeal Comstock, though it is unlikely to advance before the election.

New Republic staff writer Melissa Gira Grant and Harvard Law lecturer Kendra Albert last month coalesced historians, attorneys, organizers, and journalists at a one-day summit at Harvard Law School called ComstockCon to unite against modern-day Comstocks from further constricting abortion rights. Grant said the criminalization of sex and pregnancy has long been borne by more marginalized groups, including people of color, sex workers and people who are trans or living in poverty. She said that the reproductive justice movement now more than ever needs solidarity.

“We know that those eager rising modern-day Comstocks, the Jonathan Mitchells of the world and others, they’re in this fight for the long term,” Grant said. “We know that they regard so many of us as obscene for who we are, how we are, and how we want to be. … If they see the suppression of all of us as one fight, then that should be a point of solidarity for us.”

And many called for resistance to the dead letter and legally dubious anti-abortion deterrent laws.

“You have to keep pushing now,” said one of the panelists, Renee Bracey Sherman, founder of We Testify, which lifts up people’s abortion stories. “There will always be another ban. It’s not going to stop us from talking, from sending pills.”

Ban by deterrence

To date, no civil lawsuit has been filed under SB 8 or a sanctuary city ordinance, Dickson said.  But, as the Texas Tribune has reported, Mitchell has filed petitions (under a little-known state rule) to depose abortion funds, providers, researchers and — despite assurances that these laws won’t punish women having abortions — women who left the state to get an abortion.

These past few months, Dickson has been in Amarillo mobilizing anti-abortion activists to make their high-trafficked roads illegal for the purposes of interstate abortion-related travel. Embedded in the Amarillo ordinance is a reference to the Comstock Act. Petitioners gathered enough signatures to force the city council to vote on the measure, but abortion-rights advocates fiercely campaigned against the ordinance. After the council rejected the proposal earlier this month, Amarillo Mayor Cole Stanley said the city doesn’t have the authority to enforce the ordinance — a point with which Dickson vehemently agrees and said he spent hours explaining to the mayor.

The whole point of these ordinances, Dickson said, is that they allow for citizen lawsuits, not government enforcement. He admits that they function largely as deterrents, to chill abortion-related activity even in states where it’s legal. And it’s working, he said, noting that in the year before Dobbs, most doctors stopped providing abortions in Texas after the 2021 so-called vigilante law. One who didn’t was Dr. Alan Braid, and though he was sued, those lawsuits were dismissed.

After Dobbs, however, Braid relocated his abortion practice to New Mexico and told NPR earlier this year that his Albuquerque clinic had higher no-show rates, which he partially attributed to people scared to drive through Lubbock because of its abortion-travel ban.

“These ordinances are doing exactly what they’re intended to do,” Dickson said. “I liken it to an armed security officer at the bank who serves as a deterrent. He doesn’t have to fire his gun in order for him to be viewed as an effective method of protecting the interest of the bank.”

But there’s another purpose to these ordinances, too, particularly Amarillo’s, which anti-abortion petitioners are still trying to get on the November ballot.

Amarillo is the home of Kacsmaryk’s court, where anti-abortion attorneys have been filing their strategic lawsuits since Dobbs. Dickson said he and Mitchell are eager to make it a so-called sanctuary city as a way of arguing for legal standing in the cases to come.

Lindsay London, a nurse who co-founded the Amarillo Reproductive Freedom Alliance, which has been fighting the ordinance, said she resents having her native city used as a “strategic chess piece.” She said her coalition includes Amarillo Republicans skeptical of government overreach and is confident that, if given the opportunity, her fellow residents will vote down this law, which she said would be harmful to the community.

“It creates a culture of fear and mistrust,” London said. “The last thing that people need to be concerned about when they’re moving through a difficult situation is, is someone that they trust or a neighbor or anything like that going to use that vulnerable situation to try and sue them? Positing neighbor upon neighbor is not how we create healthy communities.”

Elisha Brown contributed to this report.

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