Yay! Let's Bring Back the Comstock Act!

When Women Became No Longer Human, Part 15: Let's Bring Back the Comstock Act! 

I really couldn't decide which series of posts this one belonged to: "When Women Became No Longer Human" or “Back to the Future.” It could be either. Or both. 

Because after Dobbs, women lost their ability to make decisions for themselves and their future--they became a human-ish sorta thing. Almost but not quite human.

Seal of Anthony Comstock's 
New York Society for the Suppression of Vice
(founded 1873)

Then again, nothing like resurrecting an 1873 law and deciding it's just what we need now!

Both Samuel Alito and Clarence Thomas called upon the Comstock Act during yesterday's oral arguments, FDA v. Alliance for Hippocratic Medicine, a case about access to the anti-abortion drug mifepristone. According to the Guttmacher Institute, medication abortions accounted for 63% of abortions in 2023, the year after the Dobbs decision--up 53% since 2020. So you can see why denying women access to mifepristone is high on the agenda . . . 

Alito rejected claims the Comstock Act was "obsolete" and wanted to know why the Food and Drug Administration hadn't considered the provisions of the Comstock Act before making its decision allowing access to mifepristone. Here's Alito: “This is a prominent provision. It’s not some obscure subsection of a complicated, obscure law. . . .  Everybody in this field knew about it.”

And here's Thomas: addresing the lawyers for one of the drug's manufacturers, he asked “How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act? [The act] is fairly broad, and it specifically covers drugs such as yours.”

And here's the original Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, first passed in 1873, when Ulysses S. Grant was president of the United States:

Every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, and every article or thing designed, adapted, or intended for preventing conception or producing abortion, or for any indecent or immoral use; and every 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 preventing conception or producing abortion, or for any indecent or immoral purpose and every written or printed card, letter, circular, book, pamphlet advertisement, or notice of any kind giving information directly or indirectly, where, or how, or of whom, or by what means any of the hereinbefore-mentioned matters, articles or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed or how or by what means conception may be prevented or abortion may be produced, whether sealed or unsealed; and every letter, packet, or package, or other mail matter containing any filthy, vile, or indecent thing, device or substance and every paper, writing, advertisement or representation that any article, instrument, substance, drug, medicine, or thing may, or can be, used or applied, for preventing conception or producing abortion, or for any indecent or immoral purpose; and every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing, is hereby declared to be a non-mailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever shall knowingly deposit or cause to be deposited for mailing or delivery, anything declared by this section to be non-mailable, or shall knowingly take, or cause the same to be taken, from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both.

Here's the text of the law currently, as cited by Alito and Thomas, now titled "Mailing Obscene or Crime-Inciting Matter" (18 U.S. Code 1461):

Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and

Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

Every 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, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001(e) of title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

The term "indecent", as used in this section includes matter of a character tending to incite arson, murder, or assassination.

The law has long been considered "effectively dead”--since the 1965 Griswold v. Connecticut decision and the 1972 Eisenstadt v. Baird decision, both recognizing the right to contraception, and the 1973 Roe v. Wade decision. Tessa Stuart notes that even before Roe, “federal courts held Comstock only applied to unlawful abortions."

"St. Anthony Comstock, the Village Nuisance” 

Louis M. Glackens, 1906

(National Archives Museum)

But the Comstock Act is what's known as a "zombie law." I'm not a lawyer, much less a legal scholar, so here is Harvard University law professor Molly Brady's definition: "There is a phenomenon known in legislation when there are laws on the books that have been declared unenforceable by a court. The term for these is “zombie laws”—the idea being that these laws might come back, might reanimate, if, for instance, the court changes its position. So, actually, after Dobbs v. Jackson Women’s Health Organization, a lot of the laws that were invalid under Roe v. Wade came back once Dobbs revisited Roe. These were examples of zombie laws." (For a more complete analysis, click here for Howard M. Wasserman's "Zombie Laws," Lewis & Clark Law Review.)

So the Comstock Act is back . . . and ready to be used for those who would like to deny access not only to mifepristone but to birth control pills and devices and any other "thing" right-wing zealots decide is "obscene, lewd, lascivious, indecent, filthy or vile"!

Cartoons like the one I've embedded, above, "St. Anthony Comstock, the Village Nuisance," may be funny, but the Comstock Act has been used to many horrific ends. Among others, see the cases of Ida Craddock, Victoria Woodhull, Alice Bunker Stockham, and Margaret Sanger. 

Here's a fine summary of the effects by Jonathan Freedman and Amy Werbel:

During the Comstock Law’s reign, millions of books, newspapers, magazines, prints, photographs and circulars were burned under court order. More than 3,000 persons arrested for violations of the Comstock Act served a total of 600 years in prison, most for writing about topics that today are widely accepted in society, including atheism, homosexuality and sexual health. Medical professionals writing about abortion or contraception were prosecuted, as well as "freethinkers" who believed in the separation of church and state. Gilded Age freethinker and editor D.M. Bennett was imprisoned for "crimes" including advocating for equality of the sexes.