When the Arizona Supreme Court reinstated the 1864 abortion ban earlier this month, it looked like the Grand Canyon state would be transported out of the 21st century and back to a time when people were property, the country was torn apart by civil war, and women had no rights any man was bound to respect. Fortunately, a last second repeal from the Arizona house seems like it will restore the status quo: An oppressive and insufficient 15 week period in which people can terminate pregnancies. It’s a small win for bodily autonomy, but the ease of imposing the 1864 law is a much more dangerous loss. Because Arizona’s temporary time warp could go national this election cycle.
During arguments over the safety and legality of mifepristone in March, the country’s angry Facebook meme uncle, Justice Sam Alito, brought up a certain section of the U.S. legal code — 18 U.S.C. 1461 — as a potential limitation on the FDA’s power to allow the distribution of safe medicine abortion, hinting at the strategy that the anti-choice movement could use to stop abortion and contraception at the federal level without having to actually pass a new and deeply unpopular law to do so. The part of the legal code he referenced was passed in 1873, and it’s more commonly known as the Comstock Act.
The Comstock Act prevents any “obscene, lewd, or lascivious” writings, or “any article or thing designed or intended for the prevention of conception or procuring an abortion” [emphasis added] from being sent through the United States Postal Service. A 1909 addition also prevents sending any of these materials through private mail carriers, so that’s a no-go on FedEx or UPS. It’s a draconian imposition on the First Amendment, bodily autonomy, and personal privacy that nonetheless conservatives hope to revive as it has never been formally repealed from the books. And if they get their way this election cycle, it will return to being the law of the land.
The catastrophic implications of dragging us into 19th century views of morality and pregnancy will affect every area of the country — no matter what state laws or constitutions might say. Yes, Comstock will put a stop to mailing the pills that have become a lifeline for so many unwilling pregnant people around the country, but the consequences are far more insidious. Providers of abortions even in states where it remains legal and supported receive tools and supplies from other parts of the country and even other parts of the world via the postal service and common carriers. The law targets not merely abortion but contraception, meaning that shipping anything from morning after pills to IUDs to diaphragms to condoms could become illegal. And while the government won’t be able to catch every single incident of contraband, it makes the task of determining your own reproductive future tantamount to a crime. Family planning will become a risk many will be too afraid to take.
So Arizona is a test for all of us — those who think the country was best in the 19th century, and those who believe in securing autonomy, dignity, and human rights for the present and future. It looks like Republican legislators have caved to public pressure and cleared the first hurdle in repealing a law that should never have had force over the lives of modern people to begin with. But it’s no time to relax. As Arizona voters will be able to nullify the zombie law with a ballot initiative to amend the state constitution in November, voters around the country will be asked to do one better: Prevent the revival of Comstock by denying Republicans any power in Congress or the White House. Because unlike the time that these brutal laws were passed, all of us get to vote now.
