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THE TRUTH ABOUT THE COMSTOCK ACT  
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Hassan Ali Kanu
April 9, 2024
The American Prospect
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_ The anti-obscenity law is unenforceable and probably
unconstitutional. Conservatives still want to use it to ban medication
abortions. _

Demonstrators protest outside the U.S. Supreme Court in Washington,
March 26, 2024., Michael Nigro / SIPA USA Via AP Images

 

Supreme Court Justice Samuel Alito apparently took a cue from
extremist anti-abortion activists last month when he asked
during oral arguments
[[link removed]] on
the legal availability of abortion medication called mifepristone why
the Food and Drug Administration hadn’t “at least considered the
application of 18 U.S.C. 1461” when the agency approved it for
public use.

Alito was stealthily referring to the Comstock Act, a 150-year-old
zombie statute that’s also referenced by code name only in Project
2025 [[link removed]], the Republican Party’s
platform for a potential second Trump presidency
[[link removed]].

The 1873 statute
[[link removed]] made it a federal
crime to mail anything “obscene, lewd, lascivious, indecent, filthy
or vile,” anything designed for “immoral use,” and specifically
in one section, any items “adapted or intended for producing
abortion.” It’s worth bearing in mind that the general anti-vice
provision, not the anti-abortion one, comes first in the statute.

Although it might have been frowned upon, Biden administration
solicitor general Elizabeth Prelogar should probably have responded by
asking Alito why the justices hadn’t considered application of the
Comstock Act in 1973, when the Court decided _Roe v. Wade_; or two
years ago, when they revoked the right to abortion in _Dobbs_.
Neither ruling mentions Comstock, not even by its numerical
designation.

One answer is that no one involved in those cases imagined that the
Comstock Act applies or should apply in the way ultraconservatives
like Alito and Clarence Thomas are now suggesting—as a de facto
national ban on abortion.

The Comstock abortion provisions were presumed unconstitutional by the
time the Court recognized a constitutional right to abortion in 1973.

Alito and Thomas, and their conservative allies, claim that the
Comstock Act’s abortion provision would ban mailing of medication or
instruments designed for abortion under any circumstances. But that is
only true if the Supreme Court changes current law.

Since the 1930s, Congress, the courts, and even the Postal Service
have all settled on an interpretation holding that the law only
applies if a sender intended for the receiver to use the medication or
tools “unlawfully,” largely because Americans have consistently
rejected the notion of all-encompassing morality laws. The Comstock
abortion provisions were dormant by the 1960s, and were presumed
unconstitutional by the time the Supreme Court recognized a
constitutional right to abortion in 1973.

Even if we take the so-called originalist approach, applying the words
of the statute as written and paying special attention to the intent
of its drafters, the Comstock Act has virtually nothing to do with the
“rights of the unborn,” and was never intended as an unconditional
ban on terminating pregnancies.

Finally, and probably most important, the statute is practically
unenforceable, and almost certainly unconstitutional. That’s because
it’s both too broad and too vague, and because of the rights
protected under the Constitution’s free-speech and equal protection
amendments, which hadn’t been established or weren’t fully clear
at the time Comstock was enacted.

As legal scholars Reva Siegel and Mary Ziegler write in a forthcoming
paper now out in draft form
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“Congress was enacting a law that would be flatly unconstitutional
today.”

Upholding the Comstock Act anyway is certainly well within the bounds
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possibility
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dealing with this current Supreme Court. But those who would be most
affected by such a ruling should know how illegitimate such a ruling
would be.

TO BE CLEAR, THE CASE SEEKING TO BAN MIFEPRISTONE—which is now used
in more than half of all abortions—lacks standing for numerous
reasons, and most legal observers agree that it will likely be
dismissed on that end. Still, the fact that at least two
Trump-appointed federal judges have
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Overton window to using Comstock as a national ban on abortion pills
and tools, and that Alito and Thomas have entertained that radical
notion, means more plaintiffs and other courts will try to legitimate
the power grab.

Carrie Baker, a professor of women’s legal history and gender at
Smith College, told me that Republicans “know they can’t win this
issue at the ballot box through democratic processes, so they’re
looking for undemocratic ways, including finding archaic laws that
haven’t been enforced, to achieve their goals.” Baker is working
on a book on the history and politics of abortion pills, to be
released this year.

The Comstock Act is concerned, first and foremost, with “illicit”
sex, and with discouraging even married people from having sex that
isn’t meant for procreation. That’s why the original version also
banned mailing objects pertaining to contraception or “the
prevention of conception”; condoms, to take a modern example. The
law’s namesake, the religious fanatic Anthony Comstock, was among
the most notorious busybodies in American history—and that’s more
than a sidenote here.

Comstock made clear in speeches, pamphlets, and personal diaries that
the point was to prohibit anything at all that might cause young
people to have “impure” thoughts. This included any indecent
“article, matter, thing, device, or substance,” like sexual
advertising and books discussing sex.

Comstock’s moral crusading was ultimately focused on suppressing
certain kinds of personal autonomy and expression.

In a highly unusual circumstance, Comstock (who held no position in
government) was deputized to enforce his namesake law as a special
agent of the Postal Service, with police-like powers. A number of
anti-vice organizations sprang up to assist this effort in cities like
New York and Chicago. Comstock ended up amassing what was probably one
of the largest noncommercial collections of dildos, sex toys, and
porn, confiscated from businesses and everyday people.

These ad hoc vice squads even went after books:
Chaucer’s _Canterbury Tales_, the Middle Eastern folk collection
called _The Arabian Nights_, and anatomy textbooks. They also went
after paintings and artwork featuring nudes, according to research by
Siegel, Ziegler, and Comstock’s biographers. In 1911, postal
inspectors even confiscated a report by the Chicago Vice Commission,
because it discussed vice.

Still, Comstock’s moral crusading was ultimately focused on
suppressing certain kinds of personal autonomy and expression, rather
than actually arresting every offender. The broader goal was to scare
people, particularly women, from making certain choices they would
otherwise be free to.

The concerns about today’s anti-abortion movement are only a little
less troubling. If the anti-abortion provision should apply as
written, as some conservatives seem to think, then the same principle
applies to the law’s anti-vice and censorship provisions too.

That means reanimating the law provides theoretical justification for
restricting the mailing of condoms or information about condom use,
for example, Baker said.

In fact, the current conservative platform, as outlined in Project
2025, seeks to limit access to condoms provided under the Affordable
Care Act’s preventative services mandate. And U.S. District Judge
Matthew Kacsmaryk—whose ruling overturned the FDA’s approval of
the abortion pills—cited the Comstock Act in a recent decision
upholding
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campus ban on drag performers at West Texas A&M University, another
example of the law’s potential reach.

Of course, Republicans today are also seeking to ban certain books and
literature that they’ve deemed obscene, just like their Victorian
counterparts.

THE ABORTION PROVISION THAT’S THE FOCUS of recent attention was
included in the act only because Comstock and other morality cops
believed that even talking about abortion or contraception would
incentivize immorality, and allow people to cover up their sins (i.e.,
by not getting pregnant). To put it differently, supporters of
Comstock laws believed people would want to have premarital sex or sex
simply for pleasure if they had access to things like condoms and
abortions, and that the government should intervene in that kind of
sinful behavior.

Still, even Comstock himself stopped short of the kind of total ban
his modern counterparts are pushing. In 1915, Comstock told
[[link removed]] _Harper’s
Weekly_ that under the law, a “doctor is allowed to bring on an
abortion in cases where a woman’s life is in danger.”

The way the law has been interpreted for much of its history also
shows its current meaning is quite different from what the right wing
is proposing today.

The Comstock Act hasn’t been widely enforced since the 1930s, after
a series of federal court decisions recognized that the government
must show that an entity or person who mails abortion-related items
intends for the receiver to use them illegally; for example, that the
person plans to use them outside the purview of medical professionals.

The Justice Department’s Office of Legal Counsel explained in a
2022 memo [[link removed]] that
Congress effectively ratified that interpretation by including a note
pointing to those 1930s federal decisions when it re-enacted or
amended the law. And both the Postal Service and the DOJ have agreed.

An entire body of First Amendment law has made the Comstock Act
unenforceable as written.

That leaves us back at the Supreme Court; and there too, anti-abortion
extremists have little to stand on.

An entire body of First Amendment law, developed after the Comstock
Act, has established broad and robust free-speech rights that allow
Americans to access and publish all kinds of information and images
that can be fairly described as obscene or indecent. Those rulings
have made the Comstock Act unenforceable as written.

In 1957, the Court held in a case against an adult book business that
“sex and obscenity are not synonymous,” for example. The Court
also held in _Griswold v. Connecticut_ that married couples have a
constitutional right to make their own decisions about contraception,
free from state control; and it held in _Eisenstadt v. Baird_ that
unmarried couples also have the same right.

Even setting those rulings aside, the Comstock Act, if interpreted the
way some conservatives are suggesting today, is still likely
unconstitutional.

The anti-abortion provision bars not just things related to abortion,
but any other article or thing adapted or intended “for any indecent
or immoral use,” language that’s either unconstitutionally broad
or vague, because it sweeps up far too much, too unpredictably.
Moreover, the Supreme Court has never addressed what most of the
language in the anti-obscenity provision means (anything “lewd,
lascivious … filthy or vile”) for much the same reasons.

Still, conservatives have proven by now that they’re relying on
ideology and religious belief
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sound legal arguments or public sentiment—to change law. Perhaps the
only viable strategy is to make clear that these laws are a backdoor
tool to regulate people’s morality and what they do with their
bodies, and maybe to amend or even repeal these antiquated laws
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as some Democrats are already suggesting
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_Prospect staff writer Hassan Ali Kanu is an award-winning reporter
covering everything from courts and access to justice, to politics,
labor, and more. He is a Sierra Leonean, now living in Washington,
D.C. Follow @hassankanu_

_Read the original article at Prospect.org.
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_ Used with the permission. The American Prospect, Prospect.org,
2024. All rights reserved._

_Click here [[link removed]] to support the Prospect's
brand of independent impact journalism_

* Comstock Act
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* anti-obscenity laws
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* abortion
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* Supreme Court
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* U.S. Constitution
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