On Monday, the city of Eunice, N.M., filed a lawsuit against both the governor and the state attorney general. The lawsuit is using the federal Comstock Act to uphold a local ordinance that would legally protect preborn children. The federal Comstock Act was passed in 1873 to prevent the distribution of pornography through the mail. However, the Comstock Act also contains provisions making it illegal to ship or receive “abortion pills” or “abortion related paraphernalia,” Pro-life litigators are arguing that, after the Dobbs decision, provisions of the Comstock Act pertaining to abortion are enforceable again. Legal counsel for the city of Eunice, include Jonathan Michell, Michael Seibel of the organization Abortion on Trial, and Tommy Parker, the Eunice city attorney.
Interestingly, New Mexico has been a key battleground over abortion in the aftermath of the Supreme Court’s Dobbs decision. Multiple abortion facilities have opened in New Mexico, hoping to attract abortion-minded women from Texas, where strong pro-life laws are in effect. Even though New Mexico leans liberal politically, Lea and Roosevelt Counties and the towns of Eunice, Clovis, and Hobbs have all passed ordinances to protect the preborn. New Mexico legislators recently countered these ordinances by passing House Bill 7, which prohibits local governments from outlawing abortion. However, Monday’s lawsuit argues that the federal Comstock Act trumps House Bill 7 and that the local pro-life ordinances should be allowed to take effect.
This lawsuit was announced at a Monday-morning press conference in front of the U.S. Supreme Court. Speaking there were several elected officials from New Mexico, including Eunice mayor Billy Hobbs, Eunice councilwoman Erica Jones, and New Mexico state senator David Gallegos. Mark Lee Dickson, who is the director of Right to Life of East Texas and heads up the Sanctuary City for the Unborn project, organized the press conference. He said it was important to announce the lawsuit in front of the Supreme Court because he felt this case would ultimately be appealed to the Supreme Court.
It is difficult to say whether pro-life litigators will be able to use the Comstock Act to either ban mail-order chemical-abortion drugs or enact broader protections for preborn children. However, unconventional legislative and litigation strategies have paid handsome dividends for pro-lifers in the recent past. In April 2021, Texas governor Greg Abbott signed a heartbeat act that protected preborn children after six weeks’ gestation. The Texas Heartbeat Act contained a unique private-enforcement mechanism that made it resistant to legal challenges.
Sure enough, the Texas Hearbeat Act took effect on September 1, 2021. This was the first time since Roe v. Wade that a state gestational age limit prior to the start of the third trimester was able to take effect. The number of abortions performed in Texas plummeted — declining by more than 50 percent in the first month alone. My November 2022 Charlotte Lozier Institute analysis of Texas birth data found that the Texas Heartbeat Act saved over 5,000 lives in its first five months alone. Perhaps litigation defending pro-life laws through the federal Comstock Act will save thousands of lives in New Mexico and elsewhere.
Disclosure: I am not a party to the lawsuit either directly or indirectly, but I did speak at Monday’s press conference in front of the Supreme Court