This story by Sofia Resnick appeared on Colorado Newsline on July 1, 2024. We are sharing it in two parts.
Mark Lee Dickson says he’s been home maybe once in the two years since the U.S. Supreme Court erased federal abortion rights in Dobbs v. Jackson Women’s Health Organization.
The 38-year-old director of Right to Life of East Texas in Longview has been on an endless road trip trying to set legal traps for people who are driving someone out of state to get an abortion. The native Texan said he drives from town to town attending pregnancy-center banquets, men’s prayer breakfasts, Republican women’s club meetings, Catholic fish fries and rodeos, trying to convince local lawmakers and potential citizen petitioners to make their cities and counties so-called “sanctuaries for the unborn,” stretching local law to restrict abortion in as many ways as possible — such as restricting travel and medical waste disposal — to potentially provoke an eventual lawsuit.
“I find myself in a variety of different places, wherever the Lord takes me,” Dickson told States Newsroom.
Many of the pregnant residents in the rural areas Dickson goes to struggle with lack of access to maternal care, but Dickson likens himself to Batman on a vigilante quest to save embryos and fetuses from abortion. Reproductive justice organizers and attorneys who’ve spent the last two years fighting to restore reproductive health care access throughout the U.S. liken Dickson to a reincarnated version of 19th century anti-vice crusader Anthony Comstock, whose eponymous anti-obscenity law Dickson has been wielding as one of many tools to fast-track a national abortion ban.
Two years since Roe v. Wade was overturned and four months away from a presidential election, one of the biggest threats to abortion rights is a federal administration willing to enforce and reinterpret the dormant Comstock Act to criminalize the mailing of abortion-related drugs, medical equipment and information.
But abortion providers and advocates say that even without Comstock, monitoring and policing of pregnant women and information is already here, thanks to activists like Dickson, whose proposed city ordinances allow residents to sue anyone suspected of helping someone get an abortion.
“I have a whole lot of friends that spend time on the sidewalks of abortion facilities throughout America,” Dickson said. “And I’ve told these friends, if you ever meet someone from Abilene, Texas, that is seeking out an abortion in New Mexico, use the sanctuary city ordinance as a deterrent as much as you can.”
Rising Comstocks
Dickson’s partner in the endeavor to broadly criminalize abortion in every state, one city at a time, is Jonathan F. Mitchell, the onetime solicitor general of Texas, who is also counsel for former President Donald Trump. Along with these sanctuary cities ordinances, together they helped draft Senate Bill 8, a blueprint for largely banning abortion in Texas in 2021 by authorizing citizens to sue those suspected of providing or assisting with an abortion.
And since Roe fell, they have been pushing a version of the Comstock Act that historians and legal scholars say never existed.
Legal scholars Reva Siegel and Mary Ziegler in their forthcoming article about the old law, write that Anthony Comstock was focused on preventing illicit sex and pornography, not on preserving fetal life. The religious zealot was known for bringing dildos, contraceptives, and pornography to testify before state and local lawmakers about the need for anti-obscenity laws.
“The statute is a ban on obscenity, not criminalization of health care,” Siegel, a professor at Yale Law School, told States Newsroom. “And when you listen to the revivalists, they just talk about Comstock as an absolute ban as if it has no exceptions. That’s just not true — in light of the text or the history.”
But that doesn’t really matter to Dickson and Mitchell.
Through their Sanctuary Cities for the Unborn project, Dickson and Mitchell have helped pass approximately 80 ordinances in cities and counties in seven states, mostly in Texas, but also in strategically located cities in abortion-access states, like New Mexico, where a challenge to ordinances that cite the Comstock Act currently awaits a ruling from the state supreme court and could eventually make its way to the U.S. Supreme Court.
Where Anthony Comstock had the financial backing of the YMCA and was elevated to power as a special agent of the U.S. Post Office, the influential conservative think tank Heritage Foundation is pushing Mitchell and Dickson’s version of Comstock in its plan for a potential future Trump administration to go after providers and distributors of abortion pills. Mitchell has received some financial support in 2023 and 2022 from the Christian right law firm Alliance Defending Freedom, which brought the recent abortion pill case before the Supreme Court.
Dickson said he wants these ordinances to go even further, such as opening up lawsuits to rideshare companies. But immediately on the agenda, he said, is to try to use Comstock to challenge state abortion-rights ballot initiatives.
“There are many ways the Comstock Act can be used to help inoculate pro-abortion ballot initiatives in states like Arizona and Nebraska,” Dickson said. “A lot is planned between now and November, I can say that.”
Mitchell, who did not respond to an interview request, is currently defending the right of Texas professors to penalize students who miss class to obtain an abortion. That new lawsuit will be heard by U.S. District Judge Matthew Kacsmaryk, whose opinion last year advanced a challenge to an abortion pill and cited Comstock as a valid argument. Though the U.S. Supreme Court recently rejected the mifepristone case, new challenges to the abortion pill continue, as does increased support for anti-abortion Comstock arguments from federal judges like 5th Circuit Court of Appeals Judge James Ho and Supreme Court Justices Samuel Alito and Clarence Thomas.
Meanwhile, longtime anti-abortion groups like Operation Rescue, which led clinic blockades in the 1980s and 1990s, continue to apply old-school surveillance and monitoring tactics. Based in Wichita, Kansas, president Troy Newman said his group maintains a sidewalk presence at abortion clinics in Wichita, and regularly files public records requests for 911 calls, which they post online. They also publish detailed reports on thousands of abortion providers in the U.S… referring to them as “the abortion cartel.”
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