Judge Kacsmaryk Misread the Comstock Act

by Lauren MacIvor Thompson

Lauren MacIvor Thompson is a historian of early-20th-century women’s rights, medicine, law and public health. She is an assistant professor of history and interdisciplinary studies at Kennesaw State University and serves as the faculty fellow at the Georgia State University College of Law’s Center for Law, Health & Society.

In an unprecedented decision, conservative U.S. District Judge Matthew Kacsmaryk suspended the Food and Drug Administration’s approval of mifepristone, one of two drugs used in medication abortions. The FDA approved mifepristone in 2000, and it has since been widely used in miscarriage and abortion care with an excellent track record of safety and efficacy.

Yet, in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which revoked the constitutional right to an abortion, the availability of medication abortion has become a major battleground, with antiabortion groups pushing to eliminate it by any means possible.

The immediate impact of Kacsmaryk’s ruling is unclear. The Department of Justice has already appealed to the U.S. Court of Appeals for the 5th Circuit, and — adding confusion — within hours of Kacsmaryk’s decision, District Judge Thomas O. Rice issued his own opinion in a separate case requiring the FDA to maintain the status quo with mifepristone in 17 states and the District of Columbia.

Yet, if implemented, Kacsmaryk’s decision will have massive ramifications — throwing the future of medication abortion in doubt and complicating miscarriage care, which threatens reproductive health and autonomy.

Kacsmaryk rationalized his opinion through a distorted reading of the long-dormant 1873 Comstock Law, which dealt with the mailing of pornography, obscene literature, contraceptives and abortifacients. While the judge found this law “straightforward” and said that it “plainly forecloses mail-order abortion in the present,” he got the intent of the drafters of the legislation wrong, as well as the legal history of its enforcement.

America in the 1870s was a society obsessed with sexual morality. After the Civil War, some abolitionists turned their attention to ridding the country of vice. Temperance campaigns and anti-prostitution efforts dominated newspaper headlines and the work of charity organizations.

Anthony Comstock, a former Union soldier, became one of the most prominent players in this movement, with his zealous anti-obscenity work. Obsessed with rooting out pornography and sexual material, he began his career in New York where he founded the New York Society for the Suppression of Vice, personally leading surprise raids on bars, saloons, sex shops and houses of prostitution. He also went after newspaper editors and pamphlet authors whom he deemed immoral, including suffragist Victoria Woodhull.

Backed by wealthy donors, Comstock took his impressive collection of pornographic pictures, sex toys and contraceptive materials to Washington, D.C., where he displayed them at the Capitol to help galvanize Congress to pass anti-obscenity legislation.

Read entire article at Made By History at the Washington Post