The proposed ordinance would require compliance with the 1873 Comstock Act. The Comstock Act is federal legislation that prohibits the transportation of "obscene" materials through the mail. The law specifically prohibits abortion-inducing drugs and abortion-related paraphernalia from being transported this way. While Griswold v Connecticut famously struck down a portion of this legislation by legalizing contraception for married couples, the law was never entirely struck down. Now, after the Supreme Court overturned Roe v. Wade, pro-life groups hope to use the Comstock Act to protect the unborn.
Some pundits argue that the Comstock Act could have a broader effect on the nationwide legality of abortion than many realize. “Every single abortion in the United States, surgical or medical, requires something that comes in the mail,” said University of California-Davis School of Law professor Mary Ziegler wrote for Slate. “Abortion providers don’t create their own medical devices or surgical instruments. They don’t make their own drugs. They get them from medical device manufacturers and pharmaceutical distributors.” If manufacturers and distributors then transport these items in the mail, they could be subject to the Comstock Act.
Residents are determined to pass the sanctuary city ordinance after an Indiana abortion business purchased a property in Danville. The city's location near the state border makes it ideal for Indiana abortionists trying to circumvent pro-life state laws.
The Sanctuary Cities for the Unborn Initiative, a national organization working to help cities throughout the US enact such ordinances, met with residents several times last month to help educate the community on how the Comstock Act can be used in local ordinances.
Danville aldermen Ethan Burt, Eve Ludwig, and Robert Williams voted to advance the ordinance, while alderwoman Tricia Teague voted in opposition. Alderman Rick Stebing abstained, and the two remaining members of the Public Services Committee (aldermen Sherry Pickering and Darren York), were absent.
The day before the April 25 vote, the ACLU of Illinois sent a letter via email to the committee asking them to reject the ordinance. The ACLU made two arguments. The first is that the ordinance would violate Illinois's 2019 Reproductive Health Act. The second is that the Comstock Act is not applicable in Illinois.
The Comstock Act, as federal law, should override state law. If courts interpret the Comstock Act to broadly prohibit the transportation of abortion paraphernalia and find the law to be constitutional, then the ACLU's first argument falls moot. The US Supreme Court may issue a decision on this as Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (a pro-life challenge to the FDA's approval of the abortion drug mifepristone) advances through the courts.
The ACLU's second argument leans on a memo issued by Biden's Department of Justice last December. As an opinion written by an executive bureaucrat (not a judge), that memo does not create a judicial precedent. In that memo, Assistant Attorney General Christopher Schroeder argued that the Comstock Act does not do what it says. He argues that it only prohibits the transportation of abortion paraphernalia when the sender intends that the recipient will use it in violation of a separate law. This interpretation by the Biden administration is shaky, and it could easily be rejected by courts.
During the April 25 meeting, Danville Mayor Rickey Williams shared that Attorney Jonathan F. Mitchell has promised to represent Danville "at no cost to the city or its taxpayers" if the city faces a lawsuit stemming from the ordinance. Mitchell has argued five times before the US Supreme Court, and he is credited with being one of the minds behind Texas's groundbreaking Heartbeat Act.
