Could the Comstock Act Help the Right Ban Abortion Nationwide?
Two months before a right-wing judge in Texas threw the legal status of the abortion pill mifepristone into limbo, a group of red-state attorneys general ganged up on executives at CVS and Walgreens, trying to stop them from filling prescriptions for the abortion medication through the mail. In a letter citing a federal law that hadn’t been enforced for half a century, the lawyers warned the chains of future criminal prosecution—never mind that mifeprisone has been FDA-approved for decades and used to end the pregnancies of over 5.6 million US women.
The law at issue—the Comstock Act, named after 1800s anti-sex crusader Anthony Comstock—is an Orwellian, puritanical, Victorian-era statute that criminalizes the mailing of “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.” Comstock himself, a former Civil War solider who moved to New York only to be scandalized by its thriving vice district, was fixated on eradicating pornography, which he considered to be anything remotely related to sex, according to the historian Lauren MacIvor Thompson. As an activist enforcer of New York anti-vice laws, he collected and destroyed mountains of books, art, contraception, sex education manuals, and women’s rights literature—and some of it, he brought to Washington, DC, on a lobbying trip. “He goes down to Congress with literally a truckload of ‘obscene’ material,” Thompson recounts. “In some random room in the Capitol building, he displays all the porn and the sex toys and whatever else he’s collected, so that he’ll shock congressmen. Of course, they are shocked.”
The Comstock Act includes in its list of “unmailable” items “every article or thing designed, adapted, or intended for producing abortion.” Violating the act is punishable by up to five years in federal prison. In the past, the act was enforced by an army of postal inspectors who regularly peeked into people’s mail, screening letters and packages en masse for mentions of sex and contraception, Thompson says. Today, though the statute is still on the books, a century of court decisions about privacy, freedom, and the First Amendment have rendered it dormant.
But once Roe v. Wade was overturned—ostensibly putting the legality of abortion in the hands of the states—the anti-abortion movement seized on the Comstock Act as a means to accomplish its longtime goal of banning abortions nationwide. Last summer, former Texas solicitor general Jonathan Mitchell, the architect of the state’s bounty hunter anti-abortion law, started pushing New Mexico towns to adopt local ordinances that bizarrely incorporated the Comstock Act into business licensing laws. (According to New Mexico ACLU attorney Ellie Rushforth, the ordinances were designed to provoke a legal challenge that could send the question of whether the Comstock Act still applies to the Supreme Court.) In November, Alliance Defending Freedom, the conservative Christian legal group, filed a lawsuit in Amarillo, Texas, challenging mifepristone’s FDA approval, and pointing to the Comstock Act in its arguments for why the drug’s distribution should be immediately halted. A month later, the Biden administration laid out its stance that the law only criminalizes people who mail things they know will be used for an illegal abortion—a difficult-to-prove charge, given that exceptions to save the life of a pregnant person exist in every state.