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

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Ebba Brunnstrom, J.D. Candidate 2024, Columbia Law School

 18 U.S.C. §§ 1461 and 1462, originating in the Comstock Act of 1873, 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 in 2022. Recent trends from the last year show that conservative lawmakers are now eager to start enforcing the Comstock Act mailing prohibitions; some are relying on the existence of these century-old laws to justify new abortion restrictions. Pushback from the Biden Administration’s Office of Legal Counsel suggests that a limiting construction should be read into the Comstock Act statues so that the prohibition on mailing would apply only to “illegal abortions.” This Note engages with the enforcement history of the statutes and criticism of OLC’s interpretation to ultimately conclude that the Comstock Act Laws are unenforceable because they are unconstitutionally vague. In doing so, this Note advances a conception of the void for vagueness doctrine that would place greater emphasis on enforcement and fair notice considerations. 

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