Mother Jones; Morgan Lee/AP
The harder Texas has worked to ban abortion, the more New Mexico has done to welcome patients fleeing the state—and vice versa. In the months after the Dobbs decision, as New Mexico became one of the most important reproductive health havens in the US, anti-abortion activists in Texas struck back by lobbying conservative communities in the state to pass local ordinances banning abortions within their jurisdictions. Those measures explicitly cited the Comstock Act, the long-defunct Victorian-era sexual purity law that prohibits the sending or receiving of anything used to perform or obtain an abortion—and they had a not-so-hidden agenda: to use “sanctuaries for the unborn” as a mechanism to force the imposition of a de facto federal abortion ban.
The Texans met with success in a handful of towns and counties before New Mexico’s Democratic attorney general, Raúl Torrez, asked the state’s highest court to shut them down. “This, ladies and gentlemen, is not Texas,” Torrez declared at a press conference announcing the emergency petition. “Local communities are not empowered to regulate medical services. They are not empowered to regulate access to health care.”
Now, more than a year after oral arguments, the New Mexico Supreme Court has struck down the local ordinances, ruling unanimously that they violate state law and “invade the Legislature’s authority to regulate access to and provision of reproductive health care.” But the decision in State of New Mexico v. Board of County Commissioners for Lea County also gives anti-abortion groups something they have been yearning for: an opportunity to put the Comstock Act—and their argument that as it remains the law of the land, the measure preempts state protections for abortion—before the US Supreme Court.
“This is the best loss I’ve ever had in my life,” Michael Seibel, an anti-abortion attorney working on the case, told a Christian news outlet soon after the ruling was handed down last week.
“We are thrilled,” echoed Jonathan Mitchell, the anti-abortion legal strategist from Texas who helped draft the New Mexico ordinances. Mitchell has been a leading proponent of using what has become known as “zombie” laws—pre-Roe v. Wade abortion bans that were unenforceable for almost a half-century but remained on the books—to outlaw abortion post-Dobbs.
“There’s this cloak of neutrality that gets attached to Comstock—’we’re just applying the law that’s been on the books, nothing new,’ which is misleading.”
It remains to be seen, of course, whether the New Mexico decision will lead to the epic legal showdown Mitchell and his allies are hoping for. But even if it doesn’t, anti-abortion groups have teed up plenty of other cases and legislation that invoke Comstock, with the same goal of getting the issue to the nation’s highest court as quickly as possible.
That’s because, two-and-a-half years after Dobbs, abortion rights are more popular than ever in the US—and, thanks largely to the abortion pill, abortions actually have been increasing despite state bans. But Donald Trump—who waffled about his abortion positions during the presidential campaign—appears to have other priorities as he takes office that take precedence over instituting a Project 2025-style federal abortion ban. So anti-abortion groups are doubling down on using the courts to impose their will.
This Comstock-focused backup plan has the added advantage (for the GOP) of insulating Trump and his Republican-controlled Congress from having to act, says Rachel Rebouché, dean at Temple University’s law school, letting the US Supreme Court’s conservative supermajority do the work for them. “There’s this cloak of neutrality that gets attached to Comstock—’We’re just applying the law that’s been on the books, nothing new,’ which is misleading,” Rebouché adds. “What the Jonathan Mitchells of the world claim Comstock did and does is, in fact, never what it did and never what it was supposed to do.”
The Comstock Act of 1873, named for the 19th-century anti-vice crusader who championed it, made it a federal crime to send or receive any “obscene, lewd, or lascivious” writings, or “any article or thing designed or intended for the prevention of conception or procuring an abortion.” For decades, the statute was used to prosecute a broad range of so-called “crimes,” including the mailing of materials discussing birth control, medical textbooks depicting human anatomy, and even letters discussing dating among unmarried people. By the 1930s, Americans had largely repudiated what came to be known as “Comstockery” and courts had greatly narrowed the statute’s scope. In 1971, Congress removed most of its restrictions on contraceptives.
But Congress never formally repealed the statute’s abortion-related provisions, even after the Roe decision in 1973 rendered them moot. When Roe was overturned, anti-abortion activists began arguing that Comstock was once again in force nationwide—even in states that sought to protect abortion after Dobbs.
This movement has been led by Mitchell, the former Texas solicitor general who has been a key architect of some of that state’s most radical and punitive anti-abortion laws, and Mark Lee Dickson, founder of the Texas-based “Sanctuary Cities for the Unborn” movement. Mitchell and Dickson have been close allies for years, pioneering the “bounty hunter” strategy—the use of private civil lawsuits to enforce anti-abortion measures such as the 2021 Texas “heartbeat” law that banned abortion after six weeks of pregnancy. The tactic, which gives private individuals the right to sue anyone who “aids or abets” an abortion, with potential damages of $10,000 per violation, has made it significantly harder for abortion-rights advocates to challenge some extreme restrictions.
Starting in late 2022, Dickson and Mitchell began targeting New Mexico border communities, urging them to pass local measures that were a variation of the Texas “sanctuary cities” ordinances. The New Mexico measures cited Comstock, asserting that the federal statute preempted the state’s abortion protections. Mitchell’s goal, he told The Nation’s Amy Littlefield in 2023, was to provoke a legal challenge from New Mexico officials. “I want to get Comstock to the [US] Supreme Court as quickly as possible,” he told her.
Mitchell and Dickson had symbolic as well as practical reasons to go after New Mexico. The state has some of the strongest abortion protections in the country, including a bill passed in 2023 that guarantees broad access to reproductive health care and another that shields providers and patients from civil or criminal liability for abortion or gender-affirming care. Abortions have more than tripled in the past two years, with most new patients crossing the border from Texas. Yet many rural New Mexico towns are more aligned politically and culturally with their Texas neighbors than with the Democrats who dominate state government.
Four conservative New Mexico towns and two counties eventually passed broadly similar ordinances. Some of the laws contained bounty-hunter provisions that echoed the draconian tactics previously championed by Mitchell and Dickson in Texas; several also imposed restrictive licensing rules for abortion clinics and physicians.
According to emails obtained by the independent news outlet Source NM, Mitchell and Dickson wrote the templates for the legislation and promised to defend the towns in court free of charge—but only if they obtained Mitchell’s approval in advance for any tweaks in the ordinances’ language. Mitchell, representing Eunice (population 3,020), eventually filed suit against Attorney General Torrez, urging a local court to declare that Comstock was still in force and “trump[s] any state-law right to abortion.” Torrez filed his own emergency writ directly to the state Supreme Court.
The New Mexico battle has drawn leading conservative groups into the fray, including the Alliance Defending Freedom, a religious-right legal powerhouse that has played a pivotal role in most of the big anti-abortion and anti-LGBTQ+ court and policy fights of recent years.
But the five state Supreme Court justices—three of whom are women and all of whom are Democrats—clearly didn’t want to play Mitchell’s game. They made a point of keeping their ruling as narrow as possible, rejecting the chance to opine about Comstock or federal law. “We…decline to address Respondents’ arguments with respect to the Comstock Act and federal preemption, which we deem unnecessary to the resolution of the issues before this Court,” Justice Shannon Bacon wrote in the January 9 ruling. Instead, they found that the ordinances were preempted under state law, including the 2023 Health Care Freedom Act, which prohibits any public body from interfering with access to reproductive or gender-affirming health care, and statutes regulating the licensing of medical facilities. Its decision, the court said, “rests solely on state law grounds.”
But the five New Mexico justices—three of whom are women and all of whom are Democrats—clearly didn’t want to play Mitchell’s game.
In addressing the issues as narrowly as possible, the justices also declined to give reproductive rights advocates something else they wanted: a sweeping ruling that abortion is protected under New Mexico’s constitution. “We heed the canon of constitutional avoidance and refrain from deciding constitutional issues unnecessary to the disposition of this case,” Bacon wrote.
The ruling is “really trying to shut down US Supreme Court review,” Rebouché says. “But it doesn’t mean that the Alliance Defending Freedom or Mitchell won’t petition the US Supreme Court to hear an appeal that there is a federal preemption issue that the [New Mexico] court did not address.”
Such an appeal seems virtually guaranteed. “This is what we planned,” Seibel, an anti-abortion attorney based in Albuquerque, told the Christian news site The World. “We knew we were going to lose from the day we drafted the ordinance.”
In a statement posted on X, Mitchell himself suggested that the New Mexico ruling had given anti-abortion groups all the grounds they needed for an appeal.
“This is the first court to hold that an ordinance requiring compliance with the federal Comstock Act prohibits the shipment and receipt of abortion-related paraphernalia in states where abortion remains legal,” Mitchell said. “We look forward to litigating these issues in other states and bringing the meaning of the federal Comstock Act to the Supreme Court of the United States.”