Who should fear the long-dead “zombie law” that took center stage in recent arguments before the Supreme Court on access to the abortion pill, mifepristone? Anyone with a uterus, clearly. But, it should also be feared by anyone with a sex life, anyone who believes in personal freedom, or anyone who doesn’t think the government should turn American companies into the morality police.
So, yes…that probably means YOU. Because — as is the case with so many of the attacks on sexual and reproductive rights from abortion opponents — the desperate attempts to resurrect the Comstock Act could threaten even more freedoms than those related to abortion.
The Comstock Act was written over 150 years ago at the behest of a misogynistic “anti-vice” crusader and postal inspector named Anthony Comstock. Comstock was obsessed with sex and worked to criminalize what he deemed “vile, lewd, lascivious” materials by restricting them from being mailed. The laws resulted in thousands of convictions and the destruction of 160 tons of literature, including birth control pamphlets. For more than a century, many of these laws’ have been ludicrously outmoded and widely considered unenforceable — ultimately the Department of Justice, the courts, and Congress made clear that the Comstock laws do not apply to legal abortions. Still, Comstock remained on the books, prompting some observers to call it a “zombie law.”
And now these zombie laws are coming to life once again. Consider that–just this week–the Arizona Supreme Court ruled that a 160-year-old near-total abortion ban still on the books could be enforced. Instead of accepting that society does not want laws that were extreme even when written, anti-abortion radicals, including jurists and lawmakers, are desperate to misapply these laws to enforce a national abortion ban. The deeply conservative Heritage Foundation is touting an 800-page plan, Project 2025, that specifically calls for a future anti-abortion administration to use Comstock to further restrict abortion access and strip away our rights.
Comstock is staggering back into the national conversation like something out of a bad horror movie, and many abortion opponents are extreme enough to make fair game of pretty much everything related to sex, reproduction, and control of our bodies. Provocative art pieces, anything that vibrates or lubricates, IVF, Viagra, sex education materials, abortion medications, all things LGBTQ — any of these could be targets of the out-of-touch body police.
The potential scope of Comstock could go beyond the obvious. Everyday items like well-known literature and movies, fashion magazines, some beauty products, basic medical supplies, and even school textbooks could fall under scrutiny. Countless businesses could be affected, and even giants like Amazon would have to navigate a minefield of legal implications for selling and shipping items that could be deemed “obscene.” Companies like FedEx and UPS could transform from neutral carriers into moral gatekeepers, forced to police the contents of their packages.
Digital entrepreneurs and local businesses selling anything from books to birth control could face fines or worse. And pharmaceutical companies? The implications for health care freedom and privacy are profound. The law potentially restricts access to essential medications and treatments that snooping moralists deem objectionable. In our interconnected world, where ideas and goods are shipped with the click of a button, such an outdated notion of "obscenity" is not only impractical, it could actually impact our economy.
Beyond the significant dent on these businesses and their customers - stifling innovation, expression, and the free flow of information and products - reanimating the Comstock Act today would set a dangerous precedent for censorship and control. If this sounds hyperbolic, consider whether you believed abortion rights would actually be taken away? The zombie Comstock Act, which Samuel Alito and Clarence Thomas repeatedly brought up during arguments at the Supreme Court, would be used to further curb liberties we already see threatened on a daily basis.
When people tell and show us what they want to do, I say we should believe them.
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