The archaic Comstock Act has been in force since 1873, when Congress passed it. The act was heavily used from its enactment until the United States v. One Package ruling in 1936 by the 2nd Circuit Court. After that, the act’s scope was weakened and then eventually laid mostly dormant for several decades, but ever since the Dobbs ruling came down last June, the Comstock Act came back with a vengeance.
When Anthony Comstock, the person who the Comstock Act was named for died in 1915, backlash to the overreaching effects of Comstock’s moralistic crusading against birth control and abortion eventually paved the way for rulings liberalizing access birth control and abortion access such as Griswold v. Connecticut and Roe v. Wade (that was overturned by Dobbs v. Jackson Women’s Health Organization in 2022).
[This story was originally published on The JGibson Report on Substack]
Susan Rinkunas at Jezebel (04.13.2023):
There is, somehow, a 150-year-old federal law still on the books that could ban abortion nationwide, and Congress needs to move to repeal it immediately. While the zombie law, the Comstock Act of 1873, hasn’t been enforced since before Roe v. Wade, it’s now a live issue thanks to the abortion pill lawsuit. Some anti-abortion activists argue Comstock is still in effect and that, as a federal statute, it trumps state laws protecting abortion. If a judge agreed, that could result in a nationwide ban on abortion—whether via pill or procedure.
When an appeals court weighed in on the case after midnight on Thursday, they didn’t just claim that people should have to make three trips to a clinic to get abortion pills—they also claimed that the Comstock Act bans the mailing of any item used for abortions.
Grace Haley at Abortion, Every Day Substack (07.30.2023):
The Comstock Act was passed by Congress in 1873 during a decades-long crusade against what religious conservatives considered “obscene.” A century and a half later, conservatives are using the 19th century federal law to target abortion across the country. They’ve invoked Comstock in the Texas mifepristone lawsuit; it’s being used in attempts to allow local governments to ban abortion in spite of state law—it’s even cited in threats against pharmacies to prevent them from dispensing abortion medication.
Legal and abortion rights experts expect this is just the beginning of how conservatives plan to use this 150-year old legislation to ban abortion across the nation. Which means, we need to understand what Comstock is all about.
[…]
History of the Comstock Act
The Comstock Act (officially titled “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use”) was enacted in 1873. The law was named after Anthony Comstock, one of the most zealous moral evangelists and anti-vice crusaders of his time. Comstock served in the Union army before working as a porter and salesman in New York City, and was appalled by the “sin and wickedness” he observed in those worlds—including the copious consumption of pornography and alcohol by his fellow soldiers, as well as the prevalence of contraception, prostitution, and pornography in the city, particularly among the poor.
Within less than a year of the statute’s enactment, Comstock was credited with assistance in the seizure of “130,000 pounds of books, 194,000 pictures and photographs, and 60,300 ‘articles made of rubber for immoral purposes, and used by both sexes.’”
[…]
After the Comstock Act was enacted, more than half of the states passed “Little Comstock laws” that mirrored the federal statute.
Ideology & Misogyny Behind the Comstock Act
The Comstock Act was rooted in ideas about purity and the social good as understood by a particular form of American Protestantism which viewed any sex that was not associated with procreation to be a sin.
During and after the civil war, socially conservative Christians like Comstock turned to state intervention and state power to enforce sexual morality. These efforts to promote a conservative Christian view of public health were also directed to restoring the “gendered hierarchy” that had existed before and been undermined by the war. Laws like the Comstock Act embody a stunted conception of the role of women. In the words of Yale Law School Professor Priscilla Smith, the statute is “rooted in archaic views of women’s sexual expression and their subservient role in the family.” It is ultimately “designed to control women’s sexual activity.”
[...]
In 1936, the Second Circuit issued a ruling making clear that physicians could mail and distribute contraceptives and information about them. The court interpreted the Comstock Act to allow “the importation, sale, or carriage by mail of things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well being of their patients.”
[…]
In 1965, the Supreme Court’s decision in Griswold v. Connecticut found that a state law banning contraception for married people violated the constitution. This decision was viewed as weakening the Comstock Act. Six years later, Congress repealed the provisions related to contraception. It did retain the provisions related to abortion, however.
Comstock Today
Today, the statute prohibits the use of the mail for any “obscene, lewd, lascivious, indecent, filthy or vile article” as well as any “article, instrument, substance, drug, medicine or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.”
Imani Gandy on X (formerly Twitter) (11.13.2023):
Mary Ziegler for The Atlantic (11.10.2023):
The Supreme Court overturned Roe v. Wade more than a year ago, but in the time since, the number of abortions performed nationwide seems to have gone up, not down. And not just in blue states—even in red states where abortion has been banned, some sizable percentage of people can and do travel out of state or get abortion pills in the mail.
The anti-abortion movement is—no surprise—committed to stopping this flow of patients and abortion pills across state lines. One strategy that has recently emerged is an effort to revive and reinterpret the Comstock Act, a 19th-century anti-vice law that the movement claims makes sending or receiving any abortion drug or device in the mail a federal crime. Other approaches are proliferating. In Alabama, the attorney general has vowed to use existing state conspiracy law to prosecute residents for helping others seek abortions out of state. And in Texas, several counties passed an ordinance allowing anyone to sue a person driving on local highways who is bringing a patient to get an abortion, whether illegally in Texas or legally elsewhere.
[…]
The Comstock Act had sweeping potential when it passed in 1873, able to be interpreted to cover information, drugs, and devices related to abortion or contraception, as well as anything else deemed obscene. But in the 19th and early 20th centuries, law-enforcement officers and postal inspectors didn’t have access to the reams of digital data available today. Catching those who published newsletters or put information on the outside of an envelope was easy; most people sending abortion or contraception materials quickly learned to use sealed envelopes. And to open an envelope, investigators needed a warrant.
But anti-vice crusaders found two ways around this problem. First, they tapped into a network of tipsters and detectives—people who deceived potential abortion providers, pretending to be patients or their loved ones to gather evidence for potential prosecutions. Anthony Comstock, a former dry-goods salesman and anti-vice activist who lobbied for the law named after him (and who became a special agent for the U.S. Postal Service in enforcing the act), perfected the art of decoy letters and disguises, looking for evidence that could be turned over to postal inspectors or police.
Second, they relied on personal vendettas and animosities: angry ex-lovers, controlling husbands, business rivals, and others who used the law for their own ends. Countless people weaponized the law in their own personal conflicts. Victorians who sent “vinegar valentines,” cards that insulted or humiliated their targets, were turned in for Comstock violations. So were men who harassed women, a flirting couple who arranged potential rendezvous, and wives who wrote angry letters to their husbands’ mistresses.
Shoshanna Ehrlich at Ms. Magazine (10.25.2023):
Dickson and Mitchell, accordingly, devised a workaround. Rather than importing a Texas-style ordinance containing an explicit abortion ban, the duo instead commandeered the moribund 1873 Comstock law as a vehicle for imposing what Dickson refers to as a “de facto” abortion ban.
Named after anti-vice crusader Anthony Comstock, this Victorian-era purity law was intended to cleanse the nation of sexual corruption by prohibiting the sending of obscene materials, including contraceptives and anything that could be used to cause an abortion, through the mail or by way of a “common carrier,” which today would include, for example, FedEx. Although the Comstock law is undoubtedly a dusty relic from a bygone era, it has nonetheless remained on the books, with the exception of the restriction on contraceptives, which was overturned for married couples by the Supreme Court’s 1965 decision in Griswold v. Connecticut and repealed by Congress in 1971 for everyone else.
Citing the supremacy of federal law, Dickson and Mitchell’s newly minted ordinances are expressly tethered to the section of the Comstock law that makes it a felony to send or receive any “article or thing designed, adapted or intended for producing abortion.” Though it should be noted that a strong argument can be made that the Comstock law, as it related to abortion, was implicitly repealed by Roe.
The model language also calls upon the feds to prosecute offending abortion providers and encourages “victims” of abortion, including “mothers, fathers and surviving relatives,” to sue providers, who are referred to as “racketeering enterprises under the Racketeer Influenced and Corrupt Organizations Act.” This reformulated approach for planting anti-abortion flags in blue states raises the specter of a backdoor national abortion ban by way of blocking the conveyance of essential medications, supplies and equipment—a threat that should not be discounted as the mere fanciful dream of fanatics, particularly given the current composition of the Supreme Court.
Recently, a court case called Missouri v. FDA was filed against medication abortions through the mail in the Amarillo Division of the Northern Texas US District Court, and that could be combined with the mifepristone ruling Alliance For Hippocratic Medicine v. FDA. The Supreme Court could make a ruling at any time.
I say it’s time to repeal the Comstock Act before it rises from its slumber! #RepealComstock!
Petitions to repeal the Comstock Act: Change.org, Daily Kos Action Network.
