Anthony Comstock strikes back

When Justices Samuel Alito and Clarence Thomas recently invoked The Comstock Act (1873)—a 151-year-old law prohibiting the mailing of sexually explicit materials and abortion drugs—the left-wing media went into a frenzy.

“Abortion-rights supporters are sounding the alarm that conservative Supreme Court justices want to use a long-dormant law to enforce a nationwide abortion ban,” warned The Hill. “Justices Thomas and Alito want to use a ‘zombie law’ to restrict abortion” declared one headline for MSNBC.

The exchange in question took place when Justice Thomas asked Jessica Ellsworth, attorney for drugmaker Danco Laboratories, directly, “How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” Her response was tepid: “This statute has not been enforced for nearly a hundred years, and I—I don’t believe that this case presents an opportunity for this Court to opine on the reach of the statute.”

Erin Hawley, the attorney representing the Alliance for Hippocratic Medicine, was not so timid. Prompted by Justice Thomas, Hawley affirmed the applicability of Comstock, stating, “The Comstock Act says that drugs should not be mailed through the—either through the mail or through common carriers. So we think that the plain text of that, Your Honor, is pretty clear.”

What is the Comstock Law of 1873? Where does it come from? And what is its relevance today?

Named for Anthony Comstock, an activist and head of the New York Society for the Suppression of Vice, the Comstock Act of 1873 made it illegal to send pornography and abortion-producing medications through the mail. As Section 211 of the Penal Code declared, “Every ... drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing conception or producing abortion ... is hereby declared to be nonmailable matter.”

Historian Gaines M. Foster has explained that the bill “dramatically expanded federal involvement in sexuality.” Where Congress had authority, including the District of Columbia, but also interstate commerce and mail, “the bill outlawed the sale, and even the possession for sale, of obscene material and information about or articles employed for birth control and abortion.”

The Comstock Act was expanded and strengthened by Congress in 1876 and 1888. In its heyday, Congress provided authorization for the Post Office to open mail suspected of obscenity and to confiscate illegal materials. By the end of his life, Comstock boasted of 3,600 arrests, and the destruction of 73,608 pounds of books, 877,412 obscene pictures, 8,495 photographic negatives, and 98,563 articles that encouraged immorality. He even tabulated the 6,436 indecent playing cards he destroyed, as well as the 8,502 boxes of pills and powders sold to induce abortions.

Until the Supreme Court’s decision in Dobbs v. Jackson Women’s Health (2022), however, the precedent set by Roe v. Wade (1973) had effectively prevented any federal enforcement of laws regulating abortion. But as David S. Cohen, a law professor at Drexel University recently acknowledged, “Now that Roe v. Wade is gone, that protection against Comstock is gone.”

Is it any wonder that the pro-abortion lobby in America is terrified at the prospect of the resurrection of the Comstock laws?

Of course, attacks on Comstock are nothing new. As early as 1878, The National Liberal League, an organization of self-described “free-thinkers” and “infidels,” demanded Congress repeal sections of 1873 Comstock law. An anarchist movement in 1883 claimed that “A censorship of the mails, such as [the Comstock] laws authorize, is a step towards establishing a national code of morals, and … a step towards the establishment of the Christian religion by the same authority.” In 1927, Anthony Comstock was characterized by critics as obsessed with “Puritan theology” and allergic to “anything remotely touching upon sex.” Or as one unsympathetic biographer entitled her 2021 book, The Man Who Hated Women.

What these caricatures ignore is the extent of sexual abuse (including the abuse of children) and human trafficking in the 19th-century, and the express motivation of activists like Anthony Comstock to pass laws to protect women and children from such abuse. While it is unlikely that the media’s stance toward Comstock will change, the media has to reckon with the fact that the Comstock Act is still federal law and should continue to be the subject of federal enforcement.