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In a case squarely aimed at breathing new life into the federal Comstock Act—and at thwarting the efforts of abortion-friendly states to protect providers and patients—a Texas man has sued a California doctor for allegedly mailing abortion pills to his girlfriend and is asking the court to prevent the woman, who is currently pregnant, from having another abortion.

In a wrongful death lawsuit filed Sunday, Texas resident Jerry Rodriguez is accusing California-based Dr. Rémy Coeytaux of violating numerous Texas abortion laws, as well as the Comstock Act—an 1873 anti-obscenity law that is still on the books—by providing the abortion pills that were used to terminate two of his girlfriend’s previous pregnancies. 

The lawsuit was filed in federal court in Galveston, Texas, by former Texas Solicitor General Jonathan Mitchell, the architect of some of the most radical and punitive abortion laws in the country. Mitchell is a leading proponent of using so-called “zombie” laws—pre-Roe v. Wade abortion bans that were unenforceable for almost half a century—to outlaw abortion post-Dobbs. The most potentially sweeping of these zombie laws is the Comstock Act, the long-defunct sexual purity law that prohibits the mailing or receiving of anything used to perform or obtain an abortion. Mitchell argues that Comstock is still the law of the land—and, if fully implemented, would amount to a de facto national abortion ban. But first, he has to get the courts to go along.

Now, he’s asking a federal judge in the Southern District of Texas to take the Comstock bait by issuing an injunction that stops Coeytaux from “distributing abortion-inducing drugs in violation of state or federal law.” And the sole federal judge in the Galveston division happens to be a Trump appointee with a history of opposing abortion and same-sex marriage.

The case is the first known test of whether abortion opponents can use federal court lawsuits to circumvent state shield laws aimed at protecting providers—a major escalation of attacks on abortion-friendly states. “The whole game for Jonathan Mitchell is to get into federal court,” says Mary Ziegler, an abortion historian and law professor at the University of California-Davis, “both because he wants to shut down doctors in shield-law states, like everyone in the anti-abortion movement, and because he wants a federal court to weigh in on the Comstock Act.”

“The whole game for Jonathan Mitchell is to get into federal court, both because he wants to shut down doctors in shield-law states, like everyone in the anti-abortion movement, and because he wants a federal court to weigh in on the Comstock Act.”

The federal court could choose to evade the Comstock claim and base its rulings solely on Texas’s wrongful death and abortion laws—but Mitchell has something bigger in........

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