This story by Sofia Resnick appeared on Colorado Newsline on July 1, 2024. We are sharing it in two parts.
Operation Rescue president Troy Newman told States Newsroom that the goal is not to target women getting abortions, but to report potential abortion-clinic violations in order to shut down clinics that since Dobbs have relocated to states without abortion bans.
“I don’t think we can keep track of them all, but we have people feeding us information on a daily basis,” Newman said.
Legal scholars Reva Siegel and Mary Ziegler argue “comstockery’’ is a threat to democracy, as it depends on suppressing freedom and promoting government censorship. Comstock famously helped imprison women who disseminated information about birth control and abortion, some who later died by suicide.
“Revivalists hope to chill the exercise of rights already recognized in positive law, including state constitutional protections and the right to travel,” Siegel and Ziegler write. “Further, by disparaging reproductive rights and intimidating those who seek to exercise them, Comstock revivalists seek to short circuit an ongoing process of popular constitutional meaning-making that has unfolded in state ballot initiatives, state courts, and grassroots movements.”
Resisting Comstocks
Many legal experts argue that Comstock would be a difficult law to defend even with a partially willing U.S. Supreme Court; however, the effects of even temporary enforcement could rock reproductive health care throughout the U.S. even more than it has since Dobbs. After initial discouragement from national reproductive rights groups, Democrats in Congress this month finally introduced a bill to repeal Comstock, though it is unlikely to advance before the election.
New Republic staff writer Melissa Gira Grant and Harvard Law lecturer Kendra Albert last month coalesced historians, attorneys, organizers, and journalists at a one-day summit at Harvard Law School called ComstockCon to unite against modern-day Comstocks from further constricting abortion rights. Grant said the criminalization of sex and pregnancy has long been borne by more marginalized groups, including people of color, sex workers and people who are trans or living in poverty.
She said that the reproductive justice movement now more than ever needs solidarity.
“We know that those eager rising modern-day Comstocks, the Jonathan Mitchells of the world and others, they’re in this fight for the long term,” Grant said. “We know that they regard so many of us as obscene for who we are, how we are, and how we want to be… If they see the suppression of all of us as one fight, then that should be a point of solidarity for us.”
Many called for resistance to the dead letter and legally dubious anti-abortion deterrent laws.
“You have to keep pushing now,” said one of the panelists, Renee Bracey Sherman, founder of We Testify, which lifts up people’s abortion stories. “There will always be another ban. It’s not going to stop us from talking, from sending pills.”
Ban by deterrence
To date, no civil lawsuit has been filed under SB 8 or a sanctuary city ordinance, Dickson said. But, as the Texas Tribune has reported, Mitchell has filed petitions (under a little-known state rule) to depose abortion funds, providers, researchers and — despite assurances that these laws won’t punish women having abortions — women who left the state to get an abortion.
These past few months, Dickson has been in Amarillo mobilizing anti-abortion activists to make their high-trafficked roads illegal for the purposes of interstate abortion-related travel. Embedded in the Amarillo ordinance is a reference to the Comstock Act. Petitioners gathered enough signatures to force the city council to vote on the measure, but abortion-rights advocates fiercely campaigned against the ordinance. After the council rejected the proposal earlier this month, Amarillo Mayor Cole Stanley said the city doesn’t have the authority to enforce the ordinance — a point with which Dickson vehemently agrees and said he spent hours explaining to the mayor.
The whole point of these ordinances, Dickson said, is that they allow for citizen lawsuits, not government enforcement. He admits that they function largely as deterrents, to chill abortion-related activity even in states where it’s legal. And it’s working, he said, noting that in the year before Dobbs, most doctors stopped providing abortions in Texas after the 2021 so-called vigilante law. One who didn’t was Dr. Alan Braid, and though he was sued, those lawsuits were dismissed.
After Dobbs, however, Braid relocated his abortion practice to New Mexico and told NPR earlier this year that his Albuquerque clinic had higher no-show rates, which he partially attributed to people scared to drive through Lubbock because of its abortion-travel ban.
“These ordinances are doing exactly what they’re intended to do,” Dickson said. “I liken it to an armed security officer at the bank who serves as a deterrent. He doesn’t have to fire his gun in order for him to be viewed as an effective method of protecting the interest of the bank.”
But there’s another purpose to these ordinances, too, particularly Amarillo’s, which anti-abortion petitioners are still trying to get on the November ballot.
Amarillo is the home of Kacsmaryk’s court, where anti-abortion attorneys have been filing their strategic lawsuits since Dobbs. Dickson said he and Mitchell are eager to make it a so-called sanctuary city as a way of arguing for legal standing in the cases to come.
Lindsay London, a nurse who co-founded the Amarillo Reproductive Freedom Alliance, which has been fighting the ordinance, said she resents having her native city used as a “strategic chess piece.” She said her coalition includes Amarillo Republicans skeptical of government overreach and is confident that, if given the opportunity, her fellow residents will vote down this law, which she said would be harmful to the community.
“It creates a culture of fear and mistrust,” London said. “The last thing that people need to be concerned about when they’re moving through a difficult situation is, is someone that they trust or a neighbor or anything like that going to use that vulnerable situation to try and sue them? Positing neighbor upon neighbor is not how we create healthy communities.”
Sofia Resnick is a national reporter covering reproductive rights for States Newsroom. Elisha Brown contributed to this report.