In the wake of the Supreme Court’s Dobbs decision, which reversed the federal constitutional right to an abortion and returned the question of abortion legality to the states, the number of pregnant people obtaining abortions through mail-ordered prescription medications is on the rise. This shift in the delivery method of abortion care has raised questions about the power of government to criminalize the distribution of abortion medications to states where abortion is prohibited. For example, in Alliance for Hippocratic Medicine v. FDA, a group of doctors challenged the Food and Drug Administration’s approval of mifepristone, one of the most commonly used drugs in at-home abortions. A lower federal court initially granted a nationwide injunction prohibiting mail-ordered prescriptions of the drug, until the Supreme Court halted the order and ultimately held that the doctors lacked standing to pursue their legal challenge. Nonetheless, questions remain as to whether the right to purchase abortion drugs for mail-order delivery is constitutionally protected or can be subject to legal regulation.
Does Privacy Include Commercial Activity?
The right to access contraception, abortion, and pornography are profoundly interwoven in legal history.
Beginning in the 1960s, the Supreme Court issued a series of privacy-related decisions that effectively granted people greater control over their sexual and reproductive lives, while leaving the question of whether the commercial activity necessary for exercising this control would be legally protected.
The Supreme Court’s landmark 1965 decision in Griswold v. Connecticut potentially, though not conclusively, resolves the issue. In Griswold, the Supreme Court recognized a constitutional right of privacy that includes the right of married people to access birth control. But it did so in a case brought by the Executive Director of Planned Parenthood and its medical director, not by the married persons whose rights were directly at stake. This distinction was and is significant. While the Court did not directly say so, its recognition that people could assert the right through their providers implicitly acknowledged that the right extended to the commercial activity and behaviors necessary to acquire birth control products on the open market.
However, the Supreme Court’s treatment of obscenity suggests the opposite result. In 1969, in Stanley v. Georgia, the Supreme Court held that the First Amendment right of privacy extends to the private possession of obscene materials in the home. Both Stanley and Griswold considered the same privacy protection derived from the Fourteenth Amendment substantive due process clause. Under Stanley, this right includes the in-home consumption of pornographic materials that are deemed to be lacking in serious value and therefore constitute unlawful obscenity.
Following Stanley, the government cannot make it a crime simply to own or consume obscene material in one’s residence. Unlike Griswold, however, the Court in Stanley did not address whether this right included a right to purchase obscenity, leaving open the question of how a person would meaningfully exercise the right without a protected opportunity to acquire the material.
Cases that came after Stanley, however, unequivocally rejected the right to purchase obscenity. For example, in United States v. Orito, the Supreme Court held that the right to privately possess obscenity does not translate into a parallel right to receive, transport, or distribute it, giving Congress the power to criminalize obscenity shipped through the mail. In United States v. 12 200-Foot Reels of Super 8mm Film, the Court extended this holding to obscene material transported across the border.
The Stanley line of cases is therefore in tension with Griswold, leaving unresolved the question of whether the right of privacy includes a concomitant right of purchase.
Abortion, Obscenity, and the Comstock Act Today
In a post-Dobbs landscape, it is critical to square these two opposing branches of case law, because the same federal statute—the Comstock Act—prohibits mailing both obscene material and abortion medication. The Comstock Act (1873) criminalizes the mailing of “lewd” or “obscene” materials, including contraception, abortifacients, and pornography. As many scholars have argued, the Comstock Act was passed amidst nativist fears about the decline of white fertility rates and was used to suppress or censor birth control activists, feminists, and those creating or disseminating sexually explicit content. The Comstock Act remains in effect today.
Despite popular belief that the Comstock Act is a dead letter law, its anti-obscenity provisions have been enforced in recent decades to target both large and small pornography producers. And 145 Republican members of Congress recently told the Supreme Court in a friend-of-the-court brief that the federal government should resume enforcement of the anti-abortion portions of the law too.
There may be analytical explanations for the difference in the treatment of obscenity and abortion. When Stanley was decided in 1969, the only way to watch or read obscenity was either in one’s home or in a public theater or business. The internet, cell phones, and digital devices did not exist. Thus, the scope of privacy in the obscenity cases may look different if they were to be decided now. It may be that protection for private consumption is not limited to the home but extends to all private spaces in which the ability of other people to avoid unwanted or inadvertent exposure is not compromised.
But it could also be that the right of consumption made implicit but not explicit in Griswold is not as broad as originally thought. In fact, the Comstock Act was on the books at the time the Court decided Griswold, but the Court did not mention it. This silence could be interpreted as an indication that the enforceability of the anti-abortion provisions of the Comstock Act was untouched by Griswold’s holding. In avoiding the legal prohibitions on distributing obscenity or abortion information and devices via the US mail found in the Comstock Act, the jurists who decided Griswold left open the question of whether privacy extended not just to consumers, but producers.
To obtain birth control, an abortion, or pornography, one generally needs to access goods and services made, sold, and distributed by others.
As a matter of federal policy, the Biden administration elected to both not enforce the Comstock Act’s anti-abortion measures and to protect nationwide access to mail-ordered abortion medications. But that policy is subject to change. Project 2025, for example, proposes to ban all pornography, presumably under the Comstock Act. The architects of Project 2025 have also been clear about their intention to revive the Comstock Act for the purpose of criminalizing access to abortion. If and when the proposal to renew an intertwined legal campaign against abortion and sexually explicit material becomes a reality, it will be incumbent upon the Supreme Court to bridge the gap between Griswold and Stanley and to once and for all directly answer the question: is there, in fact, a right to purchase our privacy?
