The Comstock Act's Equal Protection Problem

Danny Li, The Comstock Act's Equal Protection Problem

Following its victory in Dobbs, the antiabortion movement has set its sights on a national abortion ban. Intense popular backlash to abortion-restrictive legislation, however, has rendered immediate enactment of such a ban out of reach. So many movement actors have turned away from democratic politics and back to courts to revive the 1873 Comstock Act as a federal abortion ban. The budding Comstock debate has so far focused entirely on questions of statutory interpretation about whether Comstock’s text should be broadly construed to ban abortion. But these textual disagreements obscure a more fundamental infirmity: the Comstock Act is unconstitutional. This Essay argues that the Comstock Act violates the Fifth Amendment’s equal protection guarantee because it was enacted with the discriminatory purpose of inhibiting illicit sex to promote women’s sexual purity. Only contemporary reenactment of the law without constitutionally suspect motives can purge the Comstock Act of its discriminatory intent. In the alternative, these serious constitutional doubts justify adopting a narrower construction of the law as a matter of constitutional avoidance.