The ghost of Anthony Comstock

U.S. politics have been mired in growing mayhem, panic and confusion since the U.S. Supreme Court’s June 2022 Dobbs decision, which overturned its own 1973 Roe v Wade ruling legalizing abortion. At that time, the Supreme Court claimed the Dobbs decision would merely return the legality of abortion from national law to individual states to decide.

Predictably, however, this decision has opened the floodgates for a barrage of attacks on civil rights on multiple fronts, making it clear that there is no limit to the right wing’s hate-filled agenda. Since last June, these ever more aggressive religious fanatics have had the wind in their sails—continuing to doggedly pursue the same strategy that had been successful in overturning Roe: launching a host of legal challenges across the country, while also battling with activists on the ground.

The post-Roe world

They have been banning books at a frantic pace, escalating their attacks on transgender healthcare and medication abortion, and generally wreaking havoc at the state and local level.

Last year, conservative-funded groups with names such as “Moms for Liberty” (sic) tried to ban 2,571 books in local schools and public libraries—40 percent more than in the previous year—and more than in any of the prior 20 years. They target mainly books that are about gender identity or promote LGBTQ rights and racial equality. But many classic titles, such as the children’s book Charlotte’s Web, To Kill a Mockingbird, John Steinbeck’s Of Mice and Men, and (rather ironically) George Orwell’s 1984 have been caught up in this book banning frenzy.

So far in 2023, state lawmakers have introduced a record-breaking least 483 anti-trans bills. Put differently, only four states have not done so. These include banning parents from allowing their teens to attend drag shows, barring insurance companies from covering gender-affirming medical care (already in use for several decades), and even making it illegal for parents and medical providers to dispense gender affirming care to minors.

The state of Missouri has gone a major step further: on April 13th, the same day that the state’s Republican-led House overwhelmingly voted to ban gender-affirming care for youth, Attorney General Andrew Baily announced that draconian restrictions would now apply to transgender adults.

Panicked medical providers, patients and parents are fleeing all of these states in large numbers because they fear prosecution. It is worth keeping in mind that more than 50 percent of transgender and non-binary people between the ages of 13 and 24 seriously considered suicide last year.

Raising the stakes in the abortion fight

It was expected that the anti-abortion movement would use the Supreme Court’s Dobbs decision last year as a launching pad for more ambitious plans to attack women’s right to control their own bodies and reproductive lives. And it has fulfilled these expectations.

Anti-choice zealots wasted no time in targeting medication abortion, which is now the most common method of abortion in the U.S. Fully 53 percent of abortions are performed through medication abortion pills: a combination of mifepristone and another drug, misoprostol, which have proven both safe and effective through 12 weeks of pregnancy—and were approved for use by the Food and Drug Administration 23 years ago.

But medication abortion has been a giant loophole in states where abortion was suddenly illegal after Dobbs—since it has been available through mail order in many, though not all, of these states. And now it lies in the crosshairs of the anti-abortion movement.

As Rachel M. Cohen reported at Vox earlier this year,

[T]he Guttmacher Institute tracked 118 medication abortion restrictions introduced [in 2022] across 22 states, and many conservative states already have laws on the books for dispensing the drugs that go beyond what the FDA requires and what leading health organizations recommend.

But efforts to crack down on abortion pills have taken on new urgency since the Dobbs v. Jackson decision. More women are finding ways to bypass abortion bans through organizations like Aid Access in Europe, pill suppliers from Mexico, and methods like mail forwarding from states where abortion is legal. While a study from the Society of Family Planning estimated that legal abortions nationwide declined by more than 10,000 in the two months following the Supreme Court’s decision, some or many of those abortions may have been replaced by pills women privately obtained and researchers couldn’t count.

Reviving the Comstock Act of 1873

Last fall, an organization of anti-abortion doctors, calling itself the Alliance for Hippocratic Freedom, which is based in Tennessee, purposely filed a lawsuit in Amarillo, Texas, where they could be sure that the raging anti-abortion and anti-LGBTQ conservative U.S. District judge Matthew Kacsmaryk would hear the case. In so doing, they revived the Comstock Act as their legal justification.

The Comstock Act, passed in 1873, is named after its author Anthony Comstock, a postal inspector and secretary of the New York Society for the Suppression of Vice—who seemed obsessed with criminalizing every depiction of sex (including works of art such as Alexandre Cabanel’s The Birth of Venus).

His greatest legislative accomplishment was the Comstock Act, with a stated intention “to prevent the circulation of “obscene” material, including “lewd, lascivious, or filthy” books, pamphlets, or drawings, and information or devices used for contraception or abortion. It imposes a prison sentence of up to five years on anyone who sends or receives by mail or common carrier “any drug, medicine, article, or thing” intended to induce abortion.”

The Comstock Act has not been used in any legal case since the 1930s, but it was never actually overturned.

Trump appointee Kacsmaryk was more than happy to comply with the Alliance’s request. On April 7th, Kacsmaryk reversed the legality of the abortion pill mifepristone. As legal expert Ian Millhiser argued at Vox,

Kacsmaryk’s opinion in Alliance for Hippocratic Medicine v. FDA, the mifepristone case, partially rests on the proposition that, now that Roe has been overruled, the Comstock Act’s ban on mailing abortion medications has roared back into full effect. He rejects the limited reading of the act announced in decisions like One Package, claiming that “the plain text of the Comstock Act controls.”

It’s a bracing conclusion. But it’s also one of the few arguments in Kacsmaryk’s poorly reasoned legal opinion that cannot be simply laughed off as ridiculous.

To be clear, the Comstock Act does not permit Kacsmaryk to ban mifepristone, no matter what he might claim in his embarrassment of a legal opinion. Kacsmaryk does not even have jurisdiction over the Hippocratic Medicine case, and the case was filed outside of the six-year statute of limitations for challenging the Food and Drug Administration’s decision to approve a drug. Federal law also requires the Hippocratic Medicine plaintiffs to raise any claim that the Comstock Act prevents the FDA from approving mifepristone to the FDA itself before they can file a federal lawsuit making this claim. And they have not done so.

The current chaotic state of affairs

Twenty minutes after Kaczmarek issued his decision on mifepristone, Federal Judge Thomas Rice in Washington state ruled the opposite, ordering the FDA to uphold access to mifepristone in 17 states and the District of Columbia that had sued for legality, thereby preserving the status quo in these jurisdictions.

Days later, after the U.S. Attorney General filed an appeal against the Texas Judge’s ruling, the 5th District Federal Court of Appeals, dominated by Trump appointees, issued a yet different decision: reinstating FDA approval but shortening the legal time limit to take the drug from 10 weeks to seven weeks of gestation. The court also removed the right to receive abortion pills through the mail (presumably because the Comstock Act prohibits it), requiring an in-person doctor’s visit for a prescription—even though that doctor might well be in another state.

The U.S. Supreme Court, for its part, on April 21st stayed both Kaczmarek’s decision and the Appeals Court’s ruling—which will only bounce the case back to the Supreme Court in its next term.

Are you confused yet? Now, imagine you have just found out that you’re seven weeks pregnant and desperately need an abortion before the door slams shut in your locality.

This is just a glimpse of what pregnant people are facing in the U.S. today, in a patchwork of restrictions and bans that require traveling afar to obtain the reproductive and gender affirming healthcare that should be available to everyone in their own localities.

Republican politicians’ dilemma

In this situation, however, Republican Party politicians are facing a deepening dilemma, for which they have no one to blame but themselves. For decades running, they have embraced the radical right and advanced its reactionary agenda, simply because this small but well-funded minority of the population is motivated to vote in large numbers against abortion rights, racial justice, and LGBTQ rights whenever given the opportunity. And the Republicans have given them plenty of opportunity.

Simply put, Republican politicians have enthusiastically shifted further and further to the right to satisfy this ultraconservative minority—because it has won them elections and reelections over a very long period of time. In this way, the Republican Party itself has been gradually overtaken by this bloodthirsty and increasingly unhinged mob. Donald Trump did not appear out of nowhere: his ascendancy was decades in the making.

Beginning with the “New Right” in the 1970s, the radical right evolved into the “Christian Right” in the 1980s, “the “Moral Majority” in the 1990s, and the Tea Party in the 2000s. in so doing, it gradually became the backbone of the Republican Party in more recent years. Whatever its organizational affiliation, it has always operated strategically in its effort to transform the national conversation: without a shred of evidence, calling LGBTQ people “pedophiles”; inventing the racist depiction of so-called “welfare queens”; inaccurately renaming certain medically necessary late-term abortions as “Partial Birth Abortions;” describing schools teaching of the history of slavery as “unfair” to white children. These sorts of disinformation campaigns allowed these reactionaries to decimate a host of civil rights over the last four decades.

The role of Democrats

But it must also be acknowledged that the Republican Party has only succeeded in transforming U.S. politics because they faced no genuine opposition from the Democrats—and the social movements beholden to them. This is particularly the case with the pro-choice movement, which has and continues to rely almost exclusively on electing Democrats, even as Democrats have betrayed one after another of their campaign promises.

Pro-choice leader Ilyse Hogue played a key role in guiding the abortion rights movement down this disastrous path during the eight pivotal years she served as president of NARAL Pro-Choice America. Yet she has engaged in precious little self-reflection even in hindsight. In a post-mortem on the Dobbs decision, Hogue accurately describes the strategic mistakes Democrats made in the abortion controversy. As she writes, by the 1990s,

Democrats were the pro-choice party, and Republicans had effectively rebranded as “pro-life.” Two days after Bill Clinton took office for his first term as President, he theatrically lifted the executive orders limiting abortion imposed by the two prior Administrations; he went on to pursue a broad agenda of triangulation to fight the mounting culture wars. Democrats in Congress continued to negotiate with their counterparts for a middle ground that would never be found. Instead, the next quarter-century was dominated by an increasingly radical GOP mounting legal and legislative attacks on reproductive rights, efforts that were punctuated by bouts of violence and political terrorism targeting abortion providers and clinic staff when change did not come fast enough. All of this was just a precursor of what was to come…

In order to call the strategy out for what it was, Democrats would have had to surmount their own discomfort, and yet this issue—which in their minds was in constant competition with others for their attention and resources—was never deemed important enough to be worth getting over that discomfort. So, most Democrats continued to think of the abortion rights issue as a necessary concession to an interest group in their coalition rather than the strategic underpinning of an unyielding political opposition. The GOP gamble paid off, and American women and American democracy are paying for it now.

Yet Hogue writes as if the pro-choice movement’s own political adaptation played no part in Democrats’ refusal to wage a fight to keep abortion legal. In reality, by 1989 NARAL leaders had already made a conscious choice to shift their polemic on choice to one that would “play” with the Democrats in Washington. NARAL issued a “talking points” memo to its affiliates in 1989, instructing staffers specifically not to use phrases such as “a woman’s body is her own to control.” Rather, the right to choose was to be cast as a right to “privacy.” Increasingly, pro-choice organizations emphasized that being pro-choice also meant being “pro-family,” giving up critical ideological ground to the main slogan of the Christian Right.

Perhaps even more importantly, no mainstream feminist organization held Democrats accountable for their growing accommodation to anti-abortion political forces. Since Bill Clinton’s election in 1992, mainstream feminists—groups with the money to do so—failed to organize a single national demonstration for choice when Democrats occupied the White House, thereby letting Democrats permanently off the hook.

With Democrats offering only a “Republican Lite” alternative, the parameters of national politics moved steadily rightward along with the Republicans.

Yet a majority of the population has shifted leftward during this time

But this rightward shift in formal politics has taken place at a time when the majority of people have been moving leftward—which has become a glaring contradiction in a nation that calls itself the world’s “greatest democracy.”

For example, a 2022 survey by the Public Religion Research Institute conducted among nearly 23,000 people in the U.S. found that 64 percent think abortion should be legal in “most or all cases”—up from 55 percent in 2010. And only 14 percent of Republicans thought abortion should be completely illegal.

As Caitlin Cruz argued in Jezebel,

Last year, six states put abortion on the ballot and, even in cases where the ballot initiative was confusingly worded, abortion rights won every time. In Kansas, voters overwhelmingly chose to keep abortion legal despite having to vote “no” to support abortion rights. In Montana, a confusingly worded “born-alive” ballot initiative presented voters with the false belief that infants survive abortion; that was defeated too. Michigan, Vermont and California voted to enshrine the abortion rights in the states’ constitutions.

Republicans paid a price in the 2022 elections, failing to capture their widely expected majority in the Senate, while barely squeaking through a victory in the House of Representatives. Many political observers blamed the Republicans’ belligerent opposition to abortion in the aftermath of the Dobbs decision for the Party’s loss.

So even as right-wing activists have become increasingly brazen, Republican politicians aiming for national leadership find that they have painted themselves into a corner. Their long-standing campaign vows of making abortion illegal were a guaranteed vote-getter—until Roe was actually overturned last year. That doesn’t seem to have been part of their plan. Because now their evangelical constituents expect them to take this victory further.

Florida governor Ron DeSantis, who is throwing his hat into the 2024 presidential race, is emblematic of the dilemma they face.

Just a year ago, when DeSantis signed a 15-week Florida abortion ban, he did so amid great pomp and circumstance, with television cameras whirring. But that was before the Supreme Court’s Dobbs decision. In April of this year, when he signed Florida’s new six-week abortion ban, he did so after 10 pm and did not even mention it in his appearances the next day.

What to expect in the future

Recent history does not bode well for the future of civil rights in the U.S. unless new activist organizations form to bring in a substantial number of people who form the majority of popular opinion. Although social media organizing can mobilize large numbers for one-off events, there is no substitute for ongoing organizations for justice.

And it is far past the time when self-proclaimed social justice organizations should cut their ties with the Democratic Party, which has done virtually nothing to advance civil rights over the last four decades—thereby holding back the struggle for equality.