While Jonathan Mitchell would probably prefer to file most of his litigation from inside the American uteri with which he is obsessed, the GOP’s top anti-abortion lawyer seems to be everywhere else these days, too. The architect of Texas’ “bounty hunter” abortion ban has lately been spotted trying to ban library books, making sure homophobic and transphobic employers don’t have to offer insurance that covers HIV prevention drugs, and hovering over the shoulder of a Texas man suing his ex-wife’s friends for allegedly helping her purchase medication abortion.
Now he’s set up shop in New Mexican mailboxes, though his ultimate target is the Supreme Court. Mitchell’s latest lawsuit, filed Monday, attempts to override the state’s abortion protections by using a 150-year-old federal law to criminalize the distribution by mail of “obscene” materials — including materials used to end pregnancy. While the 1873 Comstock Act hasn’t been struck down entirely, parts have been repealed, and the meat of the law has broadly been considered defunct for decades. Nevertheless, Mitchell’s suit stems from one small town — Eunice, New Mexico — designating itself as a “sanctuary city” where abortion is outlawed not by an outright ban, but in deference to Comstock’s federal prohibition on the distribution of abortion material.
Mitchell is setting up a face-off between federal and state statute, no matter how obsolete the federal law or how democratically sound the state law. And abortion protections in New Mexico have wide support. Recent rulings from the state’s Supreme Court and bills passed protecting reproductive and gender-affirming care have affirmed the state’s role as an essential access point for abortion in the Southwest. It’s precisely because of New Mexicans’ support for abortion rights that Mitchell has chosen the town of Eunice as the stage for his latest anti-abortion stunt.
The Comstock gambit itself isn’t new for…
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