Abortion drug access could hinge on ‘relic’ from 1873, the anti-smut Comstock Act
May 10, 2023 Updated Wed., May 10, 2023 at 12:42 p.m.
WASHINGTON – The future of abortion rights could hinge on an anti-smut law from 150 years ago that an Amarillo judge deems enforceable once again.
The 1873 law hatched by morality crusader Anthony Comstock banned the mailing of lewd material, and any drug, device or information that can prevent or end a pregnancy.
Courts poked major holes in the Comstock Act during the Great Depression. Congress repealed the parts about contraceptives during Vietnam. But abortion foes say the ban never went away and even if it did, the Supreme Court revived it by scrapping Roe vs. Wade last June.
The Supreme Court so far has sidestepped the issue, setting contentions about Comstock aside last month as it allowed sales of mifepristone to continue for now. Weeks earlier, a Trump-appointed judge in Amarillo declared Comstock the law of the land as he tried to halt sales of the widely used abortion drug.
Two of three appellate judges who reviewed that ruling agreed on Comstock’s viability, to the dismay of abortion rights advocates.
“It’s wild to think that the Comstock Act has been banning the distribution of abortion drugs and devices… and we didn’t notice for the past 75 or 80 years?” said Elizabeth Sepper, a University of Texas law professor. “That seems like a problem with the argument.”
Mifepristone, approved by the FDA in 2020, has been used in more than half of U.S. abortions since 2020, when roughly 930,000 were performed.
The Comstock Act, on the other hand, hasn’t been used in decades.
In February, the Republican attorneys general of Texas and 19 other states invoked Comstock when they warned Walgreens and CVS, the nation’s biggest drugstore chains, not to dispense abortion drugs.
“Federal law expressly prohibits using the mail to send or receive any drug that will `be used or applied for producing abortion,’” Texas’ Ken Paxton and his colleagues wrote. “The text, not the Biden administration’s view, is what governs.”
Those GOP-controlled states made the same assertion to the Supreme Court in a brief filed on the Amarillo ruling. Sen. Ted Cruz and nearly 150 other Republicans in Congress, including most of the Texans, also urged the justices to acknowledge that Comstock remains enforceable.
Is the long-forgotten ban signed by President Ulysses S. Grant a trump card in the post-Roe era?
Who was Comstock?
The man behind the law, Anthony Comstock, was one of 10 children from a devout Christian family in Connecticut.
Cussing and other vulgar behavior among fellow Union soldiers offended him. So did a sex industry that flourished after the Civil War in New York City alongside his growing dry goods business.
His life’s work came into focus. Comstock opposed gambling, lotteries, popular magazines and weekly newspapers but most of all smut, birth control and abortion, which he viewed as an evil self-perpetuating trio of turpitude.
He organized the New York Society for the Suppression of Vice, an offshoot of a London group that promoted strict Victorian mores in England.
In Albany, Comstock pushed through a state anti-obscenity law. Then he brought his crusade to Washington, lobbying for a criminal ban on advertising or mailing any “lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character” and any information “for preventing conception or producing abortion.”
The law sailed through Congress, which then commissioned Comstock as a special U.S. Post Office agent with broad enforcement powers.
In the first year alone, he tallied seizures of 194,000 photos, 67 tons of books, 5,500 decks of playing cards, 31,150 boxes of pills and powders marketed as aphrodisiacs, and over 60,000 items made of rubber – including condoms and items now called sex toys.
“The extent to which articles for self-pollution are proved to be manufactured suggests a phase of depravity heretofore little suspected,” Comstock told patrons a few months before Congress approved the bans, according to a 2018 biography.
Where Comstock saw depravity, critics saw free speech being trampled. The famed journalist H.L. Mencken, arrested in 1926 over the “filth” he published in the American Mercury, called Comstock an “imbecile.”
Comstock eventually bragged that he had destroyed 160 tons of books, pictures and magazines and convicted more than 3,600 people.
He took credit for at least 15 suicides, too.
In 1914, Planned Parenthood founder Margaret Sanger was indicted for mailing pamphlets explaining methods of birth control.
“Comstockery” became shorthand for puritanical zealotry and censorship.
Publishers excised terms like “pregnant” – innocuous by modern standards – from books and magazines.
Preventing soldiers from fathering babies wasn’t an acceptable reason to issue condoms. So the U.S. military used another reason during World War I: protecting them from venereal disease.
Fights over birth control have dominated the history of Comstock’s law.
The FDA approved the first oral contraceptive in 1957. Marketing for birth control began in 1960. Connecticut and other states hit back by banning the use of all contraceptives.
In 1965, the Supreme Court struck down these bans in Griswold vs. Connecticut, explicitly overturning parts of the Comstock Act.
The justices agreed that married couples have a right to privacy that includes the right to obtain and use birth control.
Congress repealed elements related to contraceptives in 1971 to codify the ruling and the court expanded the right to unmarried couples the following year.
The year after that – a century after Grant signed the Comstock Act – the justices ruled that abortion, too, was a fundamental right.
That made the Comstock Act a dead letter until last June when a very different set of justices overturned Roe in Dobbs vs. Jackson Women’s Health.
No proof of illegal use, no crime
Judges were chipping away at Comstock’s law by the time he died in 1915.
That year, a federal appeals court overturned the conviction of a doctor who’d written a would-be patient to explain how to arrange for him to perform an abortion. The court noted that the procedure was legal if her life were in danger so no crime could be proved.
In 1936, another court tossed out charges against a New York gynecologist who’d received a package of vaginal contraceptives from a colleague in Japan. The pessaries were for use by women for whom pregnancy would be too risky.
That court pointed out the Comstock law itself referred to “unlawful” abortions, implying that Congress understood from the outset that ending a pregnancy was entirely legal sometimes.
A consensus took hold: The ban on contraceptives and abortion drugs wasn’t absolute. The threat of 5 years in prison only applied if the sender knew whatever they’d mailed or shipped would be used illegally.
The Supreme Court never ruled on that interpretation.
But numerous appeals courts embraced it, and that sort of judicial consensus carries weight as national precedent, too.
Shot across the bow
In December, the Biden administration announced that retail pharmacies would be allowed to dispense mifepristone.
Sepper, an expert in reproductive health law, sees the threat by Texas and the other states to prosecute CVS and Walgreens if they dispense abortion drugs as “bluster” – “a shot across the bow” by officials with no authority to enforce a federal statute.
But she added, there’s no telling what the Supreme Court might eventually say.
“There are very, very poor legal arguments that are getting treated as extremely serious by people who have the power,” she said. “Congress should have repealed this statute. It is a relic.”
In December as the Biden administration looked for ways to blunt the impact of Dobbs, the Justice Department’s Office of Legal Counsel issued an opinion meant to preempt any efforts to resurrect Comstock.
For decades, the department noted, courts agreed “the Comstock Act does not categorically prohibit” distribution of drugs intended to induce abortions.
Such drugs “serve important medical purposes and are lawful under federal and state law.” They’re used to treat miscarriage and for lawful abortions, even in states with tight restrictions, in cases of rape and incest, to save a woman’s life, and very early in pregnancy.
Amarillo federal Judge Matthew Kacsmaryk called that interpretation “unpersuasive.”
“The statute plainly does not require intent on the part of the seller that the drugs be used `unlawfully,’ ” the Trump appointee wrote in his April 7 ruling on mifepristone.
Nor, he added, did the ban go away forever just because it lay fallow during the 49-year Roe era. “Defendants cannot immunize the illegality of their actions by pointing to a small window in the past where those actions might have been legal.”
Two of the three judges at the 5th Circuit Court of Appeals who’d reviewed Kacsmaryk’s ruling scoffed at the Justice Department’s stance “that the Comstock Act does not mean what it says it means.”
They characterized it as wishful thinking that a century of lax enforcement means the law is dead, and rejected the contention that Congress implicitly repealed the ban on abortion drugs in 2007 when it adopted rules on how the FDA regulates abortion drugs.
The Supreme Court voted 7-2 to send the case back to the 5th Circuit, allowing mifepristone sales to continue for now.
Briefs filed Monday at the 5th Circuit by 23 states controlled by Democrats, and by 50 senators and 203 House members, all Democrats, assert that Kacsmaryk got it utterly wrong.
“The district court’s interpretation of the Comstock Act would have potentially boundless effects on medical care delivery,” the states argued, “preventing distribution of a host of devices, surgical instruments, and equipment used in obstetrics and gynecology and beyond, as well as numerous drugs routinely used to treat countless diseases and conditions.”
Efforts to repeal
Abortion rights supporters have long had a gnawing concern that Comstock might someday be used again to curtail abortion.
As Congress updated telecom policy for the internet age in 1996, Sen. Frank Lautenberg, D-N.J, warned that it was easier than ever to run afoul of Comstock, by sharing information by email or website.
“What if Pat Buchanan wins the presidency?” he warned. “Zealous prosecutors…might well use the new law to harass people who are pro-choice.”
Longtime Rep. Barney Frank, D-Mass., introduced bills to repeal Comstock in 1997, 1999 and 2001, all of which died with little attention.
Aren’t these moves a concession that Comstock never went away? Not necessarily, said Sepper, the law professor.
“There still are good reasons to want to repeal laws that are defunct,” she said, pointing to Texas’ century-old ban on abortion — the law struck down in Roe. The Legislature never repealed it, and when Roe fell, Paxton and others said it was enforceable again.
“As we saw after Dobbs,” she said, “there are zombie statutes that come back.”
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