In June 2022, the Supreme Court eliminated constitutional protection for abortion—forty-nine years after it had first announced that protection in Roe v. Wade (1973). In Dobbs v. Jackson Women’s Health Organization (2022), the Court held that there is no fundamental right to seek an abortion, even before the point of fetal viability. It overturned Roe and every subsequent case that had relied on it. (That ruling is discussed in more detail here.)
The Dobbs ruling awakened many ghosts of the pre-Roe era—forced birth, illegal abortions, fear on the part of doctors and pregnant patients, and political unrest. While these after-effects were unsettling and dangerous, they were predictable consequences of the Court’s sudden reversal of abortion rights. Some states moved quickly to criminalize abortion in all but the rarest of circumstances. (One example, Texas, is described here.) The issue of abortion, according to the majority in Dobbs, would now be returned to the states. But anti-abortion forces were not content to leave it with the states; they have deployed every imaginable strategy to deprive people across the country of access to abortion, even those who live in states that strongly protect abortion rights.
One of these strategies has been to attack the legality and availability of prescription drugs that are used to induce a so-called “medication abortion.” The FDA has approved a two-drug regimen for this purpose—Mifeprex (or the generic version, mifepristone) and misopristol, which are taken in sequence first to stop the embryo or fetus from developing and then to cause the evacuation of the lining and contents of the uterus. This procedure is approved for the first ten weeks of a pregnancy (the World Health Organization’s guidelines support use of the medications to induce abortion through twelve weeks of pregnancy). More than half of all abortions in the country rely on these medications (the remainder are done with surgical procedures), and the procedure has been proven to be safe and effective.
In closely watched litigation in federal court in Texas, a vehement anti-abortion judge is presiding over a case in which plaintiffs have challenged as illegal the FDA approval of Mifeprex (also known as RU-486). A ruling in their favor, which abortion advocates fear is imminent, could have implications for access to medication abortion all over the United States.
The core issue in the case relates to procedures the FDA used when it first approved Mifeprex in 2000. But the plaintiffs have also alleged an even older issue: The Comstock Act. As we explain in more detail below, this law banned the use of the mail for distribution of “obscene” materials, including those related to contraception or abortion. There has been talk in other contexts about invoking this law to ban not only the distribution of mifepristone but also perhaps mailing surgical tools or other implements used by doctors to perform abortions. Jonathan Mitchell, the anti-abortion crusader who is behind many of the most fervent efforts to deny people access to abortion, including Texas’s SB 8, which effectively eliminated most abortions in Texas almost a year before Dobbs), has urged cities in abortion-friendly states to declare themselves abortion-free “sanctuaries” on the theory that the Comstock Act preempts state law to the extent it allows abortion information or materials to be shipped into the city.
The Comstock Act, passed 150 years ago, is truly a ghost law: a law once thought long dead, which rises up to haunt living people. In this column, we will describe the law, Anthony Comstock himself (the man behind the law), and we will explain why this is one ghost that should stay dead.
Anthony Comstock and the Anti-Vice Crusade
Anthony Comstock, who was born in 1844 and died in 1915, was the most famous anti-vice crusader of the 19th century. He was the head of the New York Society for the Suppression of Vice, which he founded in 1873. He was an implacable enemy of pornography. He nagged and cajoled Congress into passing, in 1873, the law that has always been called the Comstock Act, and which, surprisingly, is basically still on the books today.
The Comstock Act banned from the mails every “obscene, lewd, or lascivious… book, pamphlet, picture, paper, letter, writing, print or other publication of an indecent character;” and also “every article or thing designed, adapted, or intended for preventing conception or producing abortion, or for any indecent or immoral purpose.” The law also prohibited the mailing of anything that gave information about where and how to prevent conception, or where and how to get an abortion. Punishment could be a fine, up to $5,000, and imprisonment for up to five years, or both. Many of the states passed similar laws.
Comstock, the man, was obsessed with vice. For him, the main thrust of these laws was the attack on “filthy” literature. Obscene literature destroyed both body and mind. The Comstock Act was designed to keep this “filth” out of the mails. But in general, this branch of the law was feebly enforced: the postal service did not have the time, the ability, or the manpower to shut down the flow of pornography, especially insofar as it traveled in the mails, hidden by the proverbial brown paper wrappers.
But the Comstock Act and its state versions were not entirely dead letters. Certainly not while Comstock was alive and active. He got himself appointed a special agent of the postal service and zealously hunted down (as best he could) violations of the Comstock Act. He was frequently ridiculed, parodied, and lampooned for his extreme zeal in fighting against “filth,” which he carried to an extent that even in his day was considered extreme. Even fine art was not immune to his critique: nudity was taboo, under all circumstances; and the fact that it considered itself “art” was no excuse. It was just as corrupting and ruinous.
Comstock could hardly expect to win his somewhat lonely fight against all forms of “filth.” Yet Comstock’s crusading did make at least something of a difference. Perhaps he went too far, but the essential point was one on which elite members of society agreed. And the law was, formally at least, on his side. In the 1870s, Comstock was responsible for almost 100 arrests for selling or advertising abortion drugs or various “indecent” articles. He also went after the notorious Madame Restell, the most famous and successful abortionist in New York; a woman who became extremely rich through selling “preventive powders,” as well as procuring abortions. She lived in a beautiful and lavishly furnished mansion on Fifth Avenue in New York City. When Comstock had her arrested because of her role in the abortion business, Madame Restell, rather than face a prison sentence, committed suicide in her home. In the same year, Comstock brought into police court in New York City a “well-dressed lady” whose name was Dr. Sara Blakesley Chase, a medical doctor, who sold to Comstock “certain articles for the prevention of conception,” which Comstock had applied for under an alias. Dr. Chase claimed the “implements seized are such as are used by reputable physicians for certain disorders.” But Comstock was firm in his belief that she had broken the law.
The Comstock Act represented, in its day, the pinnacle of Victorian prudery; the high-water mark of a strict and rigid formal code, in a period when no respectable book or newspaper dared to talk openly about a range of subjects including sex, reproduction, venereal disease, and same-sex behavior. Contraception and abortion were among these taboo subjects. Of course, the formal law was widely disobeyed. Medical doctors, as Dr. Chase stated, did not follow the strictures of the Comstock laws or its state-level versions. Newspaper ads, only thinly disguised, told people about forbidden products and gave out information that Comstock did not want the public to know. Contraceptives were advertised in the Sears Roebuck catalog. Vaseline, it was claimed, together with a dose of salicylic acid, would destroy spermatozoa. Abortion doctors, too, advertised in the newspapers. The same papers that printed editorials condemning abortion in the harshest terms also ran ads placed by such abortionists as Madame Restell; these ads hawked various nostrums that promised to address “female complaints,” including menstrual irregularities. It would take a truly dull and naïve mind not to grasp what these products were really for. And, although Madame Restell died at her own hand in 1878, she had plied her trade for many years, in an open and notorious way, and despite the fulminations against the “wickedest woman in New York,” many of her clients were members of leading families in the city.
Comstock’s Reign—and Fall
We think most legal scholars would be surprised to learn that the Comstock Act is basically still on the books. But, of course, what it means, in practice, is radically different from what it meant in the 19th century. This should come as no surprise. The world of the 21st century is not the world of the 19th century. Comstock wanted to stop the flow of pornography through the mails and to put an end to contraception and abortion—by preventing the use of the mails, and through local laws directed against these practices. He would be horrified at the situation today, in the 21st century. His crusade against “filth” was, in the end, a total failure. Today, books, plays, and movies that Comstock would have condemned as obscene circulate freely. Indeed, most of these books, plays, and movies shelter under the protective wings of the First Amendment, which the Supreme Court has interpreted to protect most forms of pornography. Theoretically, there is no legal protection for “obscene” material or child pornography, but this leaves vast swaths of sexual material in circulation. Movies and books and TV shows today talk about sex, and even depict it, in ways that would have turned Comstock’s hair white. Functionally, then, the thrust of the Comstock Act against pornography is dead.
Even deader is the prohibition on sending information about conception, and the sale and circulation of contraceptive devices themselves. By the middle of the twentieth century, courts had reached a consensus that the Comstock Act could not be enforced against anyone who mailed contraceptive material or information, unless the sender knew they were intended to be used unlawfully. These cases did not involve constitutional challenges—they raised questions of statutory interpretation. The United States Postal Service agreed to abide by the rulings and informed Congress of its plans to stop blocking mail because it related to contraception. Subsequently, Congress has reenacted and amended the Act without overriding these narrowing interpretations.
Then, in Griswold v. Connecticut (1965), the Supreme Court struck down a Connecticut law banning the sale and use of contraceptives. It held that the Fourteenth Amendment of the Constitution included a right to privacy that included the decision to use contraceptives. In Eisenstadt v. Baird (1972), the Court held that the right to use contraception belonged to individuals, whether or not they were married. In effect, these two opinions meant that no bans on the use or sale of contraceptives could be constitutionally enforced. A federal ban on mailing information about contraceptives or contraceptive drugs or devices was clearly undercut by these decisions as well. In 1971, Congress recognized this point and amended the Comstock Act to get rid of the restrictions on contraception and contraceptive information.
At that point, only the provisions about abortion were left more or less alive in the skeletal remains of the Comstock Act. But those same narrowing interpretations precluded its enforcement in most cases—even in states with strict abortion bans, it was legal when necessary to save the pregnant person’s life. Unless the sender of the offending material knew it would be used unlawfully, the judicial consensus was that the Comstock Act did not apply. Then, Roe v. Wade (1973), decided soon after Griswold and Eisenstadt, finished off the abortion provisions of the Comstock Act. In Roe, the Court held that the constitutional right to privacy included a right to abortion before a certain point in pregnancy and when necessary to preserve the pregnant woman’s health or life. State laws banning abortion were constitutionally invalid and unenforceable. The Comstock Act’s prohibition on abortion became a dead letter—if people had a constitutional right to seek an abortion, Congress had no power to interfere with their ability to obtain one. For 50 years, then, the Comstock Act survived in the federal code as a kind of fossil, theoretically still part of the formal law, but practically speaking, of no real importance.
Then came the Supreme Court’s ruling in 2022 in Dobbs v. Jackson Women’s Health Organization. The Supreme Court overruled Roe v. Wade, along with Planned Parenthood v. Casey (1992), which had reaffirmed the constitutional right to abortion. With the Constitution out of the way, the Comstock Act sprang back to life. Potentially at least. Abortion is legal in some places, illegal in others. The degree of illegality differs, too. Exceptions when the mother’s life is at stake are almost universal, although the vagueness of such exceptions and the criminal penalties that could be imposed on doctors who overstep make them even narrower in practice than was perhaps intended. Other exceptions (such as for pregnancy caused by rape or incest) are less common in the new laws. Moreover, the anti-abortion forces are not satisfied with the current state of the law since abortion remains legal and available in California, New York, Illinois, and many other states. They want more. They want a national law banning abortion. They want the Supreme Court to declare that embryos and fetuses have personhood, protected by the Constitution. Short of that, they want to make it as hard as possible for women to have abortions, even in states that moved proactively to protect abortion rights.
This is where the Comstock Act comes in.
The current version of the Comstock Act, 18 U.S.C. § 1461, provides as follows:
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 . . . 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 question raised by the plaintiffs in the Texas mifepristone case (Alliance for Hippocratic Medicine v. FDA) is whether this provision is still good law and could be applied to ban mailing medications used for abortion or even to the mailing of tools used by doctors who perform abortions. The Biden administration issued a legal opinion concluding that the Comstock Act only prohibits mailing medication abortion when the sender knows beyond a reasonable doubt that it will be used unlawfully. This standard would not be met, for example, if the sender mailed the drugs to someone for use in a state where abortion is legal, or if the sender did not know where or how the recipient intended to use them. It also would not be violated if the sender knew the recipient intended to terminate a pregnancy pursuant to a lawful exception to an abortion ban, such as in the case of rape or incest or when necessary to save the life of the pregnant patient. Moreover, most states that ban abortion do not criminalize self-managed abortion; this standard would not be satisfied if abortion pills were knowingly mailed to a person intending to use the drugs to terminate a pregnancy without physician involvement.
The Biden administration position has some legal support in appellate cases from the pre-Roe era that gave the Comstock Act a narrow reading. But the Supreme Court has never considered the question, and there is no way to know how the Dobbs Court would deal with the issue. In any event, a different president and his staff might take a different view of the scope of the statute. Anti-abortion advocates have taken the position that the Comstock Act prohibits the mailing of mifepristone for any purpose and in any jurisdiction in the United States. Some also believe it can be read to prohibit surgical abortion clinics from operating because they rely on the mail to receive various implements used in the procedure. And a group of red-state attorneys general have sent a threatening letter to national drugstore chains, the point of which is to stop them from distributing mifepristone, on the basis of the Comstock Act. Walgreens recently announced it would give in to this threat and would stop distributing mifepristone in 20 Republican-led states, including those in which abortion is legal. (This has provoked a movement to boycott the drugstore, and led the Governor of California to decide that the state would cease doing business with the company.)
The post-Roe abortion wars are just beginning. It is impossible to say at this point whether the ghost of Anthony Comstock will play a significant role in these wars, and if the Comstock Act and Comstock’s anti-vice crusade will continue to haunt the country. What is clear is that the “right-to-life” movement will not give up its struggle to put an end to abortion everywhere in the country. If abortion is murder in Mississippi, it must be murder in Massachusetts and cannot be tolerated. If the Comstock Act does not do the trick, activists will use other means. Abortion rights advocates are equally determined not to give in. The end of this war is not in sight.
The authors wish to thank Sarah Corning for her assistance with research.