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How it started. How it’s going. pic.twitter.com/lETP5ILgQj

— New York Times Pitchbot (@DougJBalloon) February 21, 2024

This one is a little more complicated.

Roe’s privacy protection rested in part on Griswold , which overturned Connecticut’s (IIRC) ban on contraceptives. That ban extended back to the Comstock Act of 1873:

The statute defined contraceptives as obscene and illicit, making it a federal offense to disseminate birth control through the mail or across state lines. 

This statute was the first of its kind in the Western world, but at the time, the American public did not pay much attention to the new law. Anthony Comstock was jubilant over his legislative victory. Soon after the federal law was on the books, twenty-four states enacted their own versions of Comstock laws to restrict the contraceptive trade on a state level. 

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But by far the most restrictive state of all was Connecticut, where the act of using birth control was even prohibited by law. Married couples could be arrested for using birth control in the privacy of their own bedrooms, and subjected to a one-year prison sentence. In actuality, law enforcement agents often looked the other way when it came to anti-birth control laws, but the statutes remained on the books

Margaret Sanger challenged these laws and won a case under New York law allowing contraceptives for therapeutic purposes. She later won a circuit court opinion reducing the law further.

Comstock wasn’t held unconstitutional, however, until Griswold (for married couples) and Eisenstadt (for everyone else.) I know Thomas and Alito want to go after Griswold, which would take out Eisenstadt, too. I’m not sure they have three more votes to do it, though.

And Alito seems more concerned about the fee-fees of people who want to hate LGBTQ in public. Or just on juries. Alito seems to think “a jury of his peers” means a jury of Alito’s peers.

I also think Comstock would be repealed in a heartbeat (well, relevant parts of it) if Griswold fell. I don’t think there’s really any local hunger to ban contraceptives, though, so I’m not clear on how the issue gets to the Court. The better struggle is a statutory replacement of Roe, and a bill to increase the size of the Court if Alito so much as mutters about the Constitutionality of that statute in his sleep.

We could also tell ‘em: “Fuck you, we limit the terms of Federal judges by age, we’re limiting justices, too. You’re just federal judges, after all.” That fight would be worth the candle.