Anthony Comstock thought that his fellow soldiers in the civil war talked about sex too much. When he signed up to serve for the Union in 1863, he saw soldiers behaving the way soldiers tend to do: they drank, and cursed, and made dirty jokes. This spectacle so scandalized Comstock’s Christian morality that he devoted the rest of his life – both in public crusades and in his position as inspector of the US Postal Service – to performing what he called “weeding in God’s garden”.
He rallied against women’s suffrage, secured the arrest and prosecution of his political enemies, and toured colleges and churches, giving speeches meant to whip his audience into a censorial frenzy. One of his targets, a New York abortion provider called Madame Restell, committed suicide after being entrapped and arrested by Comstock, who had posed as a husband seeking birth control pills. He sent others to jail for selling sex toys, or marketing abortion medications, or preaching free love. In short, Comstock became an anti-“obscenity” advocate: one of the most ideological and extreme enforcers of public morality in the nation’s history.
None of this was popular at the time: with his zealous investigation of other people’s sex lives and sadistic pursuit of incarceration for those he found insufficiently pious, he creeped out and alarmed even the comparatively repressed Victorian-era American public. But Comstock attracted some followers, and his efforts bore fruit in the Comstock Act, an 1873 federal law that criminalized the mailing of “obscene, lewd, or lascivious” material. This meant that Americans could be punished for mailing contraception, abortion drugs or implements, sex toys, pornography, or any information about contraception, abortion, or the prevention of venereal disease, or even personal letters with sexually suggestive content. And yes, the act really was enforced: Comstock and his allies appointed censors to comb through the mail, even trying to stop certain medical anatomy textbooks from circulating within the US. Later, in 1909, the Comstock Act was expanded: its censorship would no longer apply to just the US Postal Service, but to any kind of commercial transport of this “obscene” material, even by private carriers.
The twist? This law is still on the books. And now, the anti-choice movement is looking to revive it, in order to eradicate legal abortion nationwide. Both a district judge in Texas and a panel of the fifth circuit court of appeals have already signaled their endorsement of the notion that it is illegal to send abortion instruments through the mail – not just abortion pills, like mifepristone, but any instrument that can induce an abortion – including the tools, like dilators, speculums and curettes, that providers use in surgical procedures. The issue will now inevitably be taken up by the supreme court. And if the federal judiciary – or a future Republican presidential administration – decides to read the Comstock Act this way, then all abortions can be effectively banned throughout the US, with little more than the stroke of a pen.
For decades, the Comstock Act had been little more than an embarrassing historical footnote. It was a relic of a time when religiosity trampled the constitutional demand for legal secularism; when surveillance of people’s consensual sex practices was wrongly elevated into a matter worthy of public concern and public money; and when a simple-minded belief in gender hierarchy demanded considerable resources and maximal effort from the state to enforce the supposedly natural and inevitable order of men over women. The Comstock Act has been considered moot since the supreme court declared a right to contraception in Griswold v Connecticut, in 1965; Congress formally vacated the Comstock Act’s contraception ban in 1971. But the rest of the law was never formally repealed – it never had to be. With the 1973 Roe v Wade decision in place, and the constitutional right to an abortion intact, the Comstock Act faded into obscurity. It hasn’t been enforced for the better part of a century. The country moved decidedly beyond Anthony Comstock’s values, and for a long time, the law had moved beyond his punitive surveillance regime, too.
Not any more. Since last year’s Dobbs decision overturned Roe and eliminated the abortion right, the anti-choice movement has been working for a national abortion ban, and they believe that a revival of the Comstock Act is the way to get it. Much of the attention to the Comstock Act has come from the claims of anti-choice movement lawyers in a case challenging the US Food and Drug Administration’s approval of mifepristone, in which a Trump-appointed judge with a background in the anti-abortion movement agreed with the movement plaintiffs that Comstock prohibits sending mifepristone and other abortion medications through the mail. If it is upheld, that interpretation would dramatically curtail access to abortion in Republican-controlled states, where mail-order abortion pills have served as a last resort for many women needing abortions under laws that prohibit them.
But in practice, a ban on sending abortion tools through the mail or commercial transit is a ban on having those abortion tools altogether – both for medical and surgical abortions. After all, the pharmacist who dispenses abortion pills at a CVS or a community clinic, even in a legal state, does not manufacture the medicines herself; she receives them in a shipment from a pharmaceutical distributor, usually in the mail or in a delivery shipment. Similarly, the doctor, nurse or midwife who performs a dilation and curettage surgical abortion does not weld her own speculums or forge her own curettes; she does not manufacture her own syringes to administer antibiotics or painkillers; and she does not mold her own plastic hot-water bottles to give to her patients for aftercare. She buys these, as she buys all other medical supplies, through the system of commerce through which Americans fulfill most of their needs and conduct most of their lives. It is the anti-choice movement’s aim to remove abortion from that system of normal commerce, requiring providers to create alternative supply chairs – the same way the anti-choice movement has removed abortion from the broader system of normal medicine, requiring providers to create alternative clinics. The anti-choice movement wouldn’t need an act of Congress, or even a judicial ruling. All it would need is to say it was enforcing a law already on the books.
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Anthony Comstock was hated in his time. Emma Goldman, the anarchist activist who was Comstock’s contemporary, called him a “moral eunich”; successive attempts to repeal the Comstock Act in full began almost immediately after it was passed, receiving considerable press and media support. But from his position at the top of the US Postal Service and in the ears of politicians, Comstock didn’t need the American people to be on his side in order to oppress and silence them. He didn’t need popularity; he had power. With the federal judiciary firmly in its pocket, today’s anti-choice movement seems to feel the same way.
Moira Donegan is a Guardian US columnist