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University of Miami Law Review

Abstract

The Comstock Act of 1873 is a federal anti-obscenity law that, along with lascivious and filthy literature, explicitly restricts the sending of anything that can be used to procure an abortion—including writing. However, since the decision of Roe v. Wade, the law’s abortion-speech provisions had been considered long-dead—although never officially being overturned. Now that Dobbs v. Jackson Women’s Health Organization has rescinded the right to an abortion, the law appears to be reaching out from its grave. Anti-abortion activists are currently looking to the Comstock Act as a federal abortion ban already on the books because of its ban on mailing items that can be used for an abortion. However, enforcing the abortion provisions of the law also implicates the speech restrictions of the law.

This Note explores what a revival of the Comstock Act’s abortion-speech restrictions may look like through a modern lens. There are two approaches that an administration looking to enforce the abortion-speech restrictions may take. The first is an originalist approach where abortion always falls under the umbrella of obscenity—and is therefore unprotected by the First Amendment. The second is a textual reading, pointing to the plain language of the Comstock Act as restricting abortion speech, and subsequently categorizing it as unprotected incitement of illegal activity or aiding and abetting. However, many factors played into the death of the Act—expanded free speech protections, a society whose attitude on abortion shifted, and an understanding that abortion is a part of healthcare. With these developments today, would the speech regulations be able to survive the muster of strict scrutiny?

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