How Is a 19th-century Obscenity Law Being Used to Ban the Abortion Pill?

In 1873, Comstock founded the New York Society for the Suppression of Vice — a society whose crest bore two images: a man in a top hat shoving another man into a jail cell, and perhaps the same gentleman tossing a pile of books onto a pyre. That year Comstock also successfully lobbied Congress to pass the Comstock Act, a law prohibiting the possession, sale, distribution or mailing of "obscene, lewd, lascivious, indecent, filthy or vile" materials, which could include things like pornographic books and photos, but also contraception. Violation of the Comstock Act was punishable with fines and prison sentences.

After Comstock's anti-obscenity bill was signed, he was assigned as a special agent and inspector to the U.S. Postal Office, giving him the power to enforce the law. Under court order, Comstock seized and burned millions of books, newspapers, pamphlets, photographs and other printed materials — many of them educational documents about then-taboo topics: sexual health, atheism, homosexuality, contraception, abortion and equality of the sexes.

Under the Comstock Act, the first violation imposes a five-year maximum prison sentence, while subsequent ones can rack up 10 years. Over 3,000 people were arrested under the law, serving what added up to 600 years in prison. Comstock acted as personal and political nemesis to early feminists like Emma Goldman and Planned Parenthood founder Margaret Sanger. He was even known to boast about the number of "libertines" he drove to suicide.

Although the Comstock Act lost a lot of its potency after its author's death in 1915, it was actively enforced until the 1930s. However, the Supreme Court didn't pronounce it unconstitutional for all Americans until 1972— a year before the legislation's 100th birthday.

The Comstock Act of 1873 is having a bit of a renaissance 150 years after its passage. The law, though sterilized by Congress in the 1970s, was never officially repealed.

After the U.S. Supreme Court overruled Roe v. Wade in June 2022, anti-abortion activists cast around for a piece of legislation that could criminalize the distribution of the abortion drug mifepristone.

The drug, currently used in more than half of the abortions in the U.S., blocks a hormone that fertilized eggs need in order to stick to the uterine lining. What they found was a dormant Victorian-era curiosity that was used generations ago to ban everything from pornography to fine art.

While nobody has yet attempted to use the Comstock Act as a mechanism for banning the interstate shipment of sexually explicit magazines and books or for blocking any of the pornography sites on today's internet, it has been revived by anti-abortion groups and states looking to prevent the interstate shipment of mifepristone.

Yes, Anthony Comstock probably would have been very uncomfortable with the state of affairs (pun not intended) here on Earth today, but he would definitely relish the way in which his passion project has been reanimated, over a century after his death.

Although the reversal of Roe v. Wade ended the right to abortions for all Americans, the Supreme Court left the decision of whether to permit abortions to each state.

Texas, for instance, banned most abortions immediately after the Supreme Court ruling, but in other states both in-clinic and abortion by pill remain completely legal. And though abortion clinics provide services in nearby New Mexico, anyone can order mifepristone through the mail.

The Comstock Act contains language prohiniting the mailing of "any article or thing designed or intended for the prevention of conception or procuring of an abortion," and in February 2023, 20 Republican lawmakers used the Act in letters written to CVS and Walgreens pharmacies, threatening them with legal action if they began distributing mifepristone. In April of 2023, a district court judge in Texas ordered a hold on federal approval of mifepristone, citing the Comstock Act in his opinion.

There's no telling whether the Comstock Act is strong enough to stand up to 21st- century American politics and only time will tell what ultimate influence it will have. The Justice Department clarified in early January that the Comstock Act does not prohibit the mailing of abortion pills "where the sender lacks the intent that the recipient of the drugs will use them unlawfully," so the fight will continue in the courts.