The legal connection between a woman’s right to choose and LGBTQ rights has always been strong. A 1965 Supreme Court challenge to a Connecticut ban on contraception established the concept of a right to privacy, which has been crucial to LGBTQ legal decisions. The two rights are closely linked in the mind of the right wing; it’s no coincidence that when the Supreme Court struck down Roe v. Wade, Justice Clarence Thomas said that the ruling cleared the way for overturning marriage equality.
The most recent anti-abortion decision shows just how connected the two rights are. Last Friday, U.S. District Judge Matthew Kacsmaryk overturned the FDA’s 23-year-old approval of an abortion drug, appointing himself a medical expert and adopting the language of the abortion opponents who brought the legal challenge.
Kacsmaryk is the go-to judge for the far right seeking to implement its legal agenda. In him, they have found the perfect vessel for their wish list. He was appointed to the bench by Trump despite having no judicial experience. Instead, he worked at a conservative Christian organization that spent a lot of its time fighting LGBTQ+ rights.
He carried that battle onto the bench. Last year, he ended the Biden administration’s nondiscrimination protections in health care for transgender people.
In his abortion decision, Kacsmaryk cited the Comstock law, a moribund but not dead law from the 19th century that was the epitome of censorship and enforced moral codes for decades. Unsurprisingly, the Comstock law took a huge toll on the LGBTQ+ community.
At issue in the abortion ruling was the use of the mail to distribute the abortion drug. The law, which was passed in 1873, bans mailing anything designed to cause an abortion.
Amazingly, the law is still on the books, despite not having been enforced in years. But in their quest to return America to 19th-century morality, the religious right is seizing upon the Comstock law as a vehicle to achieve its goal.
For decades, the law also specifically targeted anything related to homosexuality as well. Mailing anything that could be considered obscene was a federal offense, and even talking about homosexuality in a letter could be defined as obscenity. The Post Office was extraordinarily diligent in going after publications, bringing obscenity suits and driving them out of business.
It wasn’t until 1958 that the Supreme Court ruled in a case involving ONE Magazine that homosexuality was protected as free speech. Even then, the Post Office still brought obscenity suits against gay magazines for another decade.
The namesake for the Comstock law would fit right into the modern religious right movement. Anthony Comstock was incredibly self-righteous and ready to declare his version of morality as the one that everyone else had to abide by.
Comstock was also a rabid homophobe. He despised gay men. “They ought to have branded in their foreheads the word ‘Unclean,'” Comstock said. “Instead of the law making twenty years’ imprisonment the penalty for their crime, it ought to be imprisonment for life… They are willfully bad, and glory and gloat in their perversion.”
Comstock died in 1915, but the same narrow-minded hatefulness he embodied lives on, as the Texas ruling shows. Kcasmaryk’s ruling underscores the importance of getting bad laws – like the state bans on marriage equality – off the books.
While the author of them may be dead, the bad they can do is just waiting to come back to life.