The Comstock Act Is One of America’s Weirdest and Dumbest Laws
The strangest thing to me about the recent court case on mifepristone is not that a Texas judge ordered a hold on FDA approval of a drug that was already approved 23 years ago, nor that a Washington judge simultaneously ordered the exact opposite (that the FDA may not change the availability of the drug). The weirdest part is that the Texas ruling pretends that we are still enforcing the Comstock Act—a bullshit law with a long history, originally passed in 1873.
Who is Comstock?
Anthony Comstock was an activist who led the YMCA’s Committee for the Suppression of Vice, and he lobbied for laws in New York and at the federal level that prohibited “lewd” and “obscene” materials from being sent through the mail.
The 1873 law that bore his name was broad, vague, and far-reaching. It stipulated that “no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement or notice of any kind giving information, directly or indirectly, where, or how, or of whom, or by what means either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail,” with devastating fines and prison sentences for anyone who mails, publishes, or advertises such things.
The Post Office made him a “special agent,” authorized to carry a gun and conduct raids. For the federal law, he needed to prove that the obscene materials were sent or advertised through the mail, but he also had the authority to enforce other obscenity laws that didn’t require use of the postal service. An 1868 New York law gave him a cut of any fines he was able to collect.
Comstock didn’t just wait for reports of “obscene” material being sent around—he personally ordered contraceptives and books on forbidden topics under fake names, then arrested the authors and publishers. Comstock reportedly considered himself responsible for 4,000 arrests and 15 people driven to suicide.
The Comstock Act censored books and magazines for nearly a century
While the recent court ruling focuses on abortion pills, the act was also used for large-scale censorship of basically the entire publishing industry in the United States.
Anatomy books? Obscene. Books on reproductive health? Also obscene. Classic literature, including Lysistrata and the Canterbury Tales, were also considered obscene, and publishers charged.
And these weren’t slap-on-the-wrist fines; entire print runs would be destroyed and publishers sentenced to prison. According to Time magazine, here is how the case went against the book Ulysses:
In 1918 Ezra Pound sent part of it to Margaret Anderson who published it in her Little Review. The U. S. Post Office Department seized and burned all copies sent through the mails.
And the indecent materials weren’t just about sex; the definition was broad to begin with and expanded over time. A 1908 addition included arson and assassination among the topics considered indecent.
Or take Cupid’s Yokes, a pamphlet arguing that people should partner with whoever they love instead of being locked into economically and sexually exploitative marriages. The author managed to get a presidential pardon, but a publisher who reprinted it a year later was accused of destroying the “moral, physical, and spiritual life of youth” and served a prison sentence.
Court cases over the years narrowed the scope of the Comstock laws, since they pretty clearly violate our First Amendment rights. But this happened very, very slowly. For example, it wasn’t until 1958 that the Supreme Court ruled that a magazine is not automatically obscene just because it is published for gay readers.
Birth control and abortion
The 1873 act, enacted fully 100 years before Roe v. Wade, prohibited the mailing of “any article or thing designed or intended for the prevention of conception or procuring of abortion.” Surgical supplies that could theoretically be used in an abortion? A booklet about how to use the rhythm method? Such things were outlawed, along with their advertisements and letters describing where to find them or how to use them.
In 1936, the U.S. government sued a box of diaphragms (because that is how these sorts of court cases are structured) in a case that was actually brought by Margaret Sanger of Planned Parenthood fame. The case, known as United States v. One Package, containing 120, more or less, Rubber Pessaries to Prevent Conception, established that the Comstock act doesn’t apply to materials that have a legal use. Doctors could prescribe diaphragms for, say, women who they think would be healthier if they spaced out their pregnancies.
It wasn’t until 1965 that Griswold v. Connecticut established a right for married couples to use birth control if they want. In 1972, that idea was extended to unmarried people on the basis that “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
But last week, a Texas judge decided that none of that matters; the 1873 law says that you can’t mail abortion pills, and therefore that means you can’t mail abortion pills. Nevermind that the law hasn’t been considered constitutional or enforceable for decades.