"Obscene, Lewd, and Lascivious": Women's Sex and Reproduction Under the Criminal Law of Abortion

Abstract

The inflammatory debates surrounding abortion in the United States are characterized by contentious moral disagreements. These debates, often regarding the equating of abortion with murder out of concern for fetal viability, have severe social, legal, political, and cultural consequences. In 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’ s Health Organization, revoking the constitutional right to abortion after nearly 50 years, leading to a rapid increase in recriminalization across the nation. This thesis argues that the recurring criminalization of abortion is much more than an issue of constitutional doctrine dictated by moral debates regarding fetal viability. Instead, the criminalization of abortion operates in a system the thesis refers to as “gendered governance” – the use of legal institutions and state authority to regulate sexuality and reproduction in ways that reinforce gender norms and hierarchies. To explore the criminalization of abortion within this broader framework, the thesis consists of two case studies. The first study examines the initial criminalization of abortion in the nineteenth century through Madame Restell – an abortion provider – and Anthony Comstock – a moral crusader that sought to criminalize abortion under obscenity regulation, deeply embedding ideas of sexual purity into abortion politics. The second study turns to the twenty-first century, and examines the transformation of Roe to Dobbs through anti-abortion activism. In connection to Restell, this chapter will also introduce the case of Dr. Margaret Carpenter, the first provider formally charged for mailing abortion pills under Dobbs. Synthesizing the core findings of the case studies and the continuum of abortion criminalization, the thesis will ultimately show that the recent wave of abortion criminalization should not be understood solely as a change in constitutional rights, but as a continuation of a longstanding legal tradition that polices sexuality and enforces gendered norms about sex, purity, and motherhood.