Two university professors invoke Comstock Act in lawsuit to punish pregnant students

Efforts to punish abortion patients are gaining momentum

May 30, 2024

UPDATE: The lawsuit will be heard by the now notorious Judge Matthew Kacsmaryk in Amarillo, Texas. In April 2023, Kacsmaryk sided with anti-abortion groups’ lawsuit attempting to overturn the FDA's approval of mifepristone, ruling that the Comstock Act prohibits sending the long-used drug through the mail. This case was later argued before the US Supreme Court in March 2024. A decision from the Supreme Court is expected to be released this month.

In an effort to ban abortion nationwide without having to rely on Congress to pass federal legislation, opponents of reproductive health rights are increasingly employing new and creative ways of revivifying a long-dormant, 151 year old anti-obscenity law known as the Comstock Act. “This 1873 statute made it a federal crime to mail anything ‘obscene, lewd, lascivious, indecent, filthy or vile,’ anything designed for ‘immoral use,’ and specifically in one section, any items ‘adapted or intended for producing abortion.”1 “The breadth of the legislation [also] included writings or instruments pertaining to contraception and abortion, even if written by a physician.”2

One of the latest attempts to reanimate this ‘zombie law’ comes, unsurprisingly, from Texas.

Two University of Texas at Austin professors have joined Texas Attorney General Ken Paxton in suing the Biden administration over its updated Title IX regulations. Title IX of the Education Amendments of 1972 “protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.”3 Title IX states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.4

In order to better support and protect students who are or who may become pregnant, the updated Title IX rules prohibit “any discrimination based on a student’s current, potential, or past pregnancy or related conditions.” The definition of “pregnancy or related conditions” includes “pregnancy, childbirth, termination of pregnancy, and lactation; medical conditions related to pregnancy, childbirth, termination of pregnancy, and lactation; and recovery from pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions.”

Schools receiving federal funds are required to provide reasonable accommodations for students, including, but not limited to, “breaks during class to express breast milk, breastfeed, or attend to health needs associated with pregnancy or related conditions, including eating, drinking, or using the restroom; intermittent absences to attend medical appointments;” and allowing a student to utilize a voluntary leave of absence for a “period of time deemed medically necessary by the student’s healthcare provider.”

For two male professors - who will never become pregnant - this is just too much to ask. Bless their hearts!

Professor Daniel Bonevac (Philosophy) and Associate Professor John Hatfield (Department of Finance) “do not intend to accommodate student absences from class to obtain abortions,” the lawsuit states plainly.

The lawsuit argues that “requiring[] schools to excuse a student’s absence for ‘terminat[ing] [her] pregnancy’... violates Texas law.” It does not violate Texas law.

The two professors object to “purely elective abortions,” according to the lawsuit. However, they offer no explanation for how they intend to determine the reason why a prospective student may need to terminate a pregnancy, nor do the professors offer a definition of what they consider to be “purely elective abortions.”

Texas resident Kate Cox was admitted to the emergency room four times in a month suffering physical distress while carrying her non-viable fetus. The fetus had been diagnosed with multiple fatal anomalies and was expected to die before birth. Cox was experiencing severe cramping, elevated glucose (a warning sign for gestational diabetes), and diarrhea, and she was leaking amniotic fluid. Cox’s physician determined that terminating the pregnancy was the best measure to preserve Cox’s health and life. Yet, the Supreme Court of Texas ruled that Kate Cox’s state of deteriorating health did not meet the requirements of Texas’s medical exception, and Cox was denied the abortion she needed.

When Cox fled Texas to terminate her pregnancy in another state, the anti-abortion movement widely condemned her, with some even calling Cox a murderer, insisting that Cox’s abortion was “elective.” — It is not unreasonable to assume professors Bonevac and Hatfield hold the same or similar view of what qualifies as “elective.”

The lawsuit continues, “Nor will Plaintiffs Hatfield and Bonevac hire a teaching assistant who has violated the abortion laws of Texas or the federal-law prohibitions on the shipment or receipt of abortion pills and abortion-related paraphernalia. See 18 U.S.C. § 1461–1462… [...]... Nor does Title IX require professors and universities to accommodate or employ students who have engaged in the shipment or receipt of abortion pills and abortion-related paraphernalia in violation of federal law. See 18 U.S.C. § 1461–1462” (emphasis mine).

*18 U.S.C. § 1461–1462 is the Comstock Act - the zombie law that hasn’t been enforced in nearly a century.

“The Final [Title IX] Rule attempts to impose a legal duty on recipients of federal funds to protect women who abort their pregnancies even when that abortion violates State law,” the lawsuit grouses (emphasis mine).

As of this writing, it is not illegal in Texas for a pregnant person to seek an abortion, to order abortion medication online, or to self-manage an abortion; nor is it illegal for a pregnant person to travel out of state to receive an abortion; and no Texas law subjects the pregnant person to punishment for an abortion.

Monetary assistance is available through non-profit groups to Texans who need financial assistance to travel out of state to receive a safe, legal abortion, like Kate Cox was forced to do.

That said, the continued efforts to reanimate the long-unenforced Comstock Act reveal a concerted move in the direction of eventually criminalizing patients. While the more powerful, mainstream groups within the movement against reproductive health rights currently maintain a public-stance, in America, against prosecuting people who have abortions, most of these same groups actively support criminalizing abortion patients in other countries, such as El Salvador.

Last week, at the Texas Republican Party convention, delegates tasked with updating the party's platform called for the legislature to enact laws that would criminalize abortion patients like Kate Cox.

Delegate Patrick Van Dohlen pushed for “a law that would prohibit out of state travel for obtaining an abortion.”5 “We are saying that if you do go across state lines to commit murder of the unborn, you come back and an investigation determines its so, you can be brought up on charges” of homicide, he said.6

The updated Texas Republican Party platform formulated by the delegates last week “calls[] for new legislation to solidify fetal personhood ideology into law, define abortion care as homicide and criminalize in vitro fertilization.”7 “The GOP platform calls for an ‘equal protection of the laws to all preborn children from the moment of fertilization,’ and later states that ‘abortion is not healthcare, it is homicide.’ The phrase ‘equal protection of the law’ is used in the anti-choice movement to define abortion as homicide, and criminalizes abortion physicians and patients as murderers.”8

“Texas has executed more people than any other state. Although the platform language doesn’t require that Texas treat abortion as capital murder ― the only offense that’s punishable by the death penalty in the state ― Texas law currently treats the murder of a child younger than 15 as a capital offense.”9 Importantly, “[i]f a fetus is considered a person, then it’s considered a child, which is a vulnerable population. … Homicide of identified vulnerable persons escalates penalties.”10

Although the more powerful, mainstream groups within the movement against reproductive health rights are still holding the American public-facing line against punishing abortion patients, that line “is dangerously evaporating, and it’s evaporating purposefully because the fringe element [of the anti-reproductive rights movement]... is more and more becoming reflective of the Republican Party writ large” and “is having a greater and greater influence.”11

Revivifying the Comstock Act through lawsuits is one more step toward eroding this line.

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