Abstract
Following its victory in Dobbs, the antiabortion movement has set its sights on a national abortion ban. Affiliates of the second Trump Admin- istration—including the vice president-elect—have endorsed the re- newed enforcement of the 1873 Comstock Act as one avenue for implementing such a ban. This Essay argues that contemporary enforce- ment of the Comstock Act as a national abortion ban would be unconsti- tutional. The Act violates the Fifth Amendment’s equal protection guarantee because it was enacted with the discriminatory purpose of in- hibiting illicit sex to promote women’s sexual purity. Only contemporary reenactment of the law without constitutionally suspect motives can purge the Comstock Act of its discriminatory intent. In the alternative, these serious constitutional doubts justify adopting a narrower construc- tion of the law as a matter of constitutional avoidance.
Recommended Citation
Danny Y. Li,
The Comstock Act’s Equal Protection Problem,
123
Mich. L. Rev. Online
42
(2025).
Available at:
https://repository.law.umich.edu/mlr_online/vol123/iss1/4
Included in
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