[ Anti-abortion activists appear to feel emboldened by last
summers Supreme Court decision and apparently are trying to use the
Comstock Act to reopen long-settled questions about sexual health and
reproductive rights.]
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WHY ANTI-ABORTION GROUPS ARE CITING THE IDEAS OF A 19TH-CENTURY
‘VICE REFORMER’  
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Sarah McCammon
April 18, 2023
NPR
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_ Anti-abortion activists appear to feel emboldened by last summer's
Supreme Court decision and apparently are trying to use the Comstock
Act to reopen long-settled questions about sexual health and
reproductive rights. _

Boxes containing doses of the abortion pill mifepristone are laid out
at the Hope Clinic in Illinois. The Comstock Act of 1873, which
outlawed the distribution of "obscene" materials such as
contraception, is being cited as a basis for blocking the mailin,
Sarah McCammon/NPR

 

A federal case challenging access to a common abortion pill is
reviving discussions about a 150-year-old anti-obscenity law.

In 1873, what's known as the Comstock Act banned multiple items
related to sex and reproductive health that many people see as quite
ordinary today. Until recently, that law had been largely forgotten or
ignored. But it's being cited in the federal case out of Texas that
could curb access to the widely used abortion pill mifepristone.

What is the Comstock Act?

The law prohibits using the mail to spread information or materials
deemed "obscene." The term "obscenity" wasn't defined
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but the statute did explicitly include anything used to cause an
abortion.

The official title
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the law is much longer, but it's known as the Comstock Act because of
a Connecticut man named Anthony Comstock.

Comstock, a former Union soldier from a deeply religious family,
became "horrified by the amount of porn and alcohol he saw his fellow
soldiers consuming" while serving in the Army, according to Lauren
MacIvor Thompson, a historian at Kennesaw State University in Georgia.

 

Anthony Comstock's opposition to what he saw as "vices" — including
pornography, contraception and abortion — prompted Congress to pass
what became known as the Comstock Act in 1873.  Getty Images

And Gillian Frank, a historian of religion and sexuality and a
visiting affiliate scholar at Princeton University, says Comstock
embraced a devout form of Protestant Christianity that made him
skeptical of ordinary people's ability to control their desires.

"He believed that people were easily corrupted and that it was the
role of government and moral crusaders to protect them from harmful
and corrupting influences," Frank says. "So in order to stamp out
vice, he believed there should be an entire legal apparatus in order
to impose his particular set of religious morals."

After the Civil War, Thompson says, Comstock wound up in New York and
became a "vice reformer" — an activist leading efforts to oppose
those types of behaviors. As part of this work, Comstock assembled a
large collection of items he found objectionable that he'd obtained in
places like brothels and sex shops.

Then he took it all to Washington, D.C., Thompson says.

"[By this time] he has a very extensive collection of porn, sex toys,
'obscene' books and, of course, contraceptive and abortifacient
devices," she says. "And he invites the congressmen to come and look
at this display of 'shocking' items."

Comstock persuaded Congress to pass restrictions on sending those
materials through the mail. Many states also passed their own versions
of Comstock laws around this time.

Even in the decades after the Comstock Act and similar laws were
passed, they were largely unpopular and there were efforts to repeal
them, Thompson says. But the Comstock Act was never fully repealed by
Congress.

Instead, a long series of court cases eventually overturned much of
the Comstock Act, perhaps most famously _Griswold v. Connecticut_,
the U.S. Supreme Court case that legalized contraception
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1965 for married couples. Then in 1971
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Congress repealed portions
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the law related to birth control.

The rest has been largely ignored or seen as unenforceable because of
evolving case law around issues like free speech and privacy rights,
according to Frank.

"A lot of the free speech and privacy that we have, especially sexual
privacy, was carved out in the shadow of Comstock, in defiance of it,"
Frank says.

Last year, after the Supreme Court overturned _Roe v. Wade_, which
had guaranteed abortion rights for decades, President Biden's Justice
Department issued a memo stating that the Comstock Act does not
apply  [[link removed]]to
the mailing of abortion pills as long as the sender intends for them
to be used legally. The Food and Drug Administration under Biden has
been allowing that
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2021.

How does the Comstock Act play into the federal abortion pill case?

Groups opposed to abortion rights are trying to overturn
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FDA's decades-old approval of the abortion pill mifepristone and do
away with the recent rule changes that have made the pills more
available.

Erin Hawley, an attorney for the plaintiffs, argues that contrary to
the Biden administration's interpretation, the Comstock Act does make
mailing pills illegal.

"What the Comstock law says is that it is improper to mail things that
induce or cause abortions, which is precisely the action the FDA took
in 2021 when it permitted the mailing of abortion drugs," Hawley says.

And Matthew Kacsmaryk, the federal judge in Texas, where this case
originated, appeared to agree
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that argument in his ruling just over a week ago. As this case has
been working its way through the federal courts, the 5th U.S. Circuit
Court of Appeals also issued a decision
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seemed friendly to anti-abortion groups' reading of the Comstock Act.

The Supreme Court has issued an administrative stay
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the case until late Wednesday, temporarily preserving access to
mifepristone nationwide.

Lorie Chaiten, a senior staff attorney at the American Civil Liberties
Union's Reproductive Freedom Project, says anti-abortion activists
appear to feel emboldened by last summer's Supreme Court decision and
apparently are trying to use the Comstock Act to reopen long-settled
questions about sexual health and reproductive rights.

"I think that in a sane world, these kinds of arguments get laughed
out of court," Chaiten says.

She says she's optimistic those arguments won't prevail but adds that
if they did, it would be "catastrophic" for abortion access.

What would it mean for anti-abortion groups to revive portions of the
Comstock Act?

Legal experts note that the language of the Comstock Act is vague and
broad; for example, it was once used to ban the distribution of
information about birth control as well as devices related to
contraception and abortion.

Asked about other potential applications of the Comstock Act, Hawley
says she believes it could restrict the mailing of other medical
products that are necessary to carry out abortion procedures.

"We haven't focused on that," Hawley says. "But the law does prohibit
items that are manufactured for abortions."

That reading of the Comstock Act could have implications for people in
all 50 states, says Mary Ziegler, a law professor at the University of
California, Davis.

"I cannot underscore how broad the text is," she says. "It could
encompass any device used in an abortion."

And that, Ziegler says, could amount to a national ban. In fact, she
says citing the Comstock Act is part of an intentional strategy being
pushed by some anti-abortion activists.

"Because if you can prosecute anyone for putting anything in the mail
related to abortion, there is no abortion in the United States that
takes place without something put in the mail," Ziegler says. "There
are no abortion providers making DIY drugs and medical devices."

_Sarah McCammon is a National Correspondent for NPR. Her work focuses
on political, social and cultural divides in America, including
abortion policy and the intersections of politics and religion. _

* Anti-abortion law
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* Comstock Act
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* abortion bans
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