“People will lose blood… This is not a fun game.”
It's time to stop the anti-choice movement’s dangerous game to reanimate Comstockery.
The anti-reproductive-rights movement wants to reanimate the Comstock Act. Their efforts play a dangerous game with every American's life and freedom, and with doctors’ abilities to provide even the most basic of medical care.
It's time to take action!
Outline
A Brief Overview of the Comstock Act
In March, 151 years ago, President Ulysses S. Grant signed a bill for the suppression of vice. While the bill is officially titled “An Act for the Suppression of Trade In, and Circulation of, Obscene Literature and Articles of Immoral Use,” it is better known as the Comstock Act. “This was the first federal law to make ‘obscene’ literature illegal with provisions for prosecution… [T]he law granted unprecedented and sweeping powers to government officials to search people’s private mail, to confiscate and destroy published materials and to fine and imprison writers and booksellers, as well as anyone found in possession of material deemed illicit.” [1] “The breadth of the legislation [also] included writings or instruments pertaining to contraception and abortion, even if written by a physician.” [2]
Regarding abortion, the Comstock Act had no exceptions for the life and health of the pregnant person.
The bill’s namesake, Anthony Comstock, was an anti-vice crusader dedicated to imposing his own rigid idea of Christian morality upon American society. Comstock convinced Congress to pass this broad and sweeping law to suppress “obscenity.” The law itself did not define obscenity— Anthony Comstock did, and he used his position as a special agent of the U.S. Postal Service, “with broad powers to police the mails,” to severely enforce the law. [3] “Numerous doctors suffered arrest and conviction for supplying written materials explaining pregnancy and how to prevent it.” [4] “In court cases, [Mr. Comstock] often barred jurors from seeing the item in question, saying that it was too vile to show them.” [5]
“Anthony Comstock boasted that in his lifetime he seized 150 tons of books, made 4,000 arrests, and drove 15 people to suicide.” [6] A real sweet guy.
Relevant Legal changes
Over time, “people began to question the legitimacy of the Comstock Act,” and by the early 1900s, the law “began to be kind of archaic and unused.” [7]
“There are only a handful of rulings parsing the law, most from the early 1900s,” and none were decided by the U.S. Supreme Court, in part because the law began to be unenforced. [8] “Most of the court rulings focused on contraception, reading Comstock narrowly to apply only when someone ‘knowingly’ mailed something that would be used in violation of existing laws on abortion or contraception.” [9]
Unfortunately, however, as historian and law professor Mary Ziegler noted, “In the meantime, Congress—just to score points—in the 1950s actually expanded the language of the Comstock Act so that it would apply not only to drugs intended for abortion, but also to anything adapted for abortion, which if you pause for a minute, is extraordinarily broad.” [10] Although “Congress amended the Comstock Act several times, including to remove the restrictions on mailing contraception in 1971… lawmakers left the abortion aspects of the law [in place] and did not take the step to specifically carve out exceptions for lawful procedures.” [11]
The Comstock Act still has no exception for the life and health of the pregnant person.
While Roe v. Wade was in place, the Comstock Act was considered unconstitutional, and, for a time, the anti-abortion movement didn’t want to revive the Comstock Act, because the movement began going out of its way to try to convince the American public that the movement was not an anti-sex and anti-woman movement. [12] But now that Dobbs has overturned Roe, the anti-reproductive-rights movement is trying to bring the Comstock Act back from the dead in an effort to ban all abortions - yes, all - throughout the entire country. No exceptions.
The Anti-choice Strategy in Motion
Since the Dobbs decision, American voters have defied what anti-abortion leaders were predicting and, instead, have generally supported abortion rights. [13] In response to American voters’ support of reproductive freedom and autonomy, anti-abortion leaders have said “time and again… that the principles that they’ve espoused… the personhood and the right to life of the pre-born or unborn child, as they would put it, trumps what voters want, trumps majority rule,” explained Ziegler. [14] The anti-reproductive-rights movement has thus “become disillusioned with voters,” and “convinced that voters are not willing to do the right thing when it comes to protecting the right to life, and that therefore, the movement needs to find ways to bypass voters.” [15] If you ask people in the anti-abortion movement, “they’ll essentially say, ‘What we’re doing here is more important than democracy… this matters more than the will of the people.’ But embracing Comstock says that with a bullet,” Ziegler said. [16]
By bringing the Comstock Act back into force, the anti-reproductive-rights movement hopes to ban abortion nationwide without having to rely on Congress to pass a nationwide ban. Anti-abortion lawyers insist that the anti-abortion movement doesn't need to pass a new law, because the Comstock Act is already law. [17] Since the language of the Comstock Act is so broad, “it could be used to not only ban medication abortion, but by prohibiting shipments of medical supplies used in clinics, it could outright ban abortion procedures in all 50 states. Yes, even [in states] with laws that protect abortion.” [18] If someone in a future Republican Justice Department makes an ideologically-driven decision to label contraception an “abortifacient,” contraceptives would no longer be available, because they could not be mailed. [20] If courts reanimate the Comstock Act, “we have absolutely no idea how broadly it would apply, because the language is… remarkably vague and sweeping.” [21]
To make matters worse, Ziegler explained, “there would be no exceptions for this. There’s no life-of-the-pregnant-person exception. If you stop and think about what ‘any drug or device adapted for abortion’ means, anyone who’s been pregnant knows that there are bazillions of drugs, to use the technical term, that are counter-indicated for pregnancy.” [19]
According to Ziegler, the anti-abortion movement has never before “championed a national statute with language [as] broad as Comstock,” but reviving the Comstock Act “is simply the only way they see to get to a nationwide abortion ban. And the fact that everyone would hate it and no one would know what it means, and that in any kind of normal world, it would be unconstitutional to revive a law, a criminal law like this that no one has taken seriously in at least half a century—None of that seems to matter.” [22] And so, the anti-reproductive-rights movement has begun “seeding local ordinances with mentions of the Comstock Act,” and “promoting this argument to state legislators and conservative attorneys general.” [23] They also invoked the Comstock Act in the anti-mifepristone lawsuit that will be argued before the United States Supreme Court later this month.
While the resurrection and application of the Comstock Act is not a question before the Supreme Court, the “Alliance Defending Freedom is trying to force the Supreme Court to weigh in on the Comstock Act… when it hears the abortion pill case on March 26.” [24] (Remember: Whether Roe v. Wade should be overturned was not a question presented in Dobbs, but at oral arguments, lawyers for Mississippi went ahead and asked the Court to completely overturn Roe. [25]) A brief submitted and signed by 145 Republican members of Congress cites the Comstock Act in urging the US Supreme Court to ban the mailing of mifepristone nationwide. [26] (These Cogressmembers afford no consideration to the fact that mifepristone is used to treat a wide array of medical conditions, and that patients would be adversely affected if they no longer have access to the drug.) “Other amicus briefs in the case point to that horrifying possibility: One filed on Tuesday by former Trump lawyer Jay Sekulow argues that Comstock ‘makes it a federal offense to mail abortion drugs (or devices or equipment)’ and that ‘the prohibition is simple, complete, and categorical.’ Additional briefs that cite Comstock either by name or statute number include those from the group of anti-abortion doctors who sued the FDA in the first place, plus Americans United for Life and the conservative Ethics and Public Policy Center.” [27]
I an interview regarding the US Fifth Circuit Court of Appeals’ April ruling in the anti-mifepristone case, Mary Ziegler explained:
“The Alliance for Hippocratic Medicine isn’t so much arguing on the merits that Comstock creates a nationwide ban on all abortions, although they think it should, they’re arguing instead and trying to bootstrap Comstock onto their points about FDA authority. Essentially arguing the fact that they think abortion is a federal crime means that any harm to the FDA - or anyone else really, from lack of access to mifepristone, lands differently because this criminal law is looming in the background. So, for example, the Fifth Circuit is explaining that no one could suffer harm if access to mifepristone is modified or cut off overnight because mailing mifepristone is a crime anyway - so no one really has a right to do it.” [28]
The anti-abortion movement is playing a zero-sum game, and any one of us can become a casualty of their war against reproductive rights and freedoms.
“This is not a fun game”: The Effects of Comstock on Basic Medical Care
Months after the Dobbs decision, doctors in Pueblo, Colorado, spoke out against a proposed local ordinance, crafted by anti-abortion activists, that would require doctors and medical facilities to comply with the Comstock Act.
At the Pueblo City Council meeting, doctors emphasized that, if the Comstock ordinance passed, doctors “wouldn't be able to adequately care for their patients because the municipal law would preclude them from using ‘any article or thing designed, adapted or intended for producing abortion; or any article, instrument, substance, drug, medicine or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.’" [29] Edifying the Council members, the doctors explained that “the same devices and medications that are used for abortions [are also used] to treat patients experiencing other medical issues.” [30] "Everything we use to treat ectopic pregnancies, miscarriages, to diagnose endometrial cancers — it can all be adapted to perform abortions," said Dr. Mike Growney, an OB-GYN with the Parkview Health System (which does not perform abortions). "Half the stuff we use was adapted for clinical practice from people that do abortions. It’s hand-in-hand. It’s tools of the trade. It’s the same equipment. It’s the same medication. We just use it in different ways — not performing terminations. But this ordinance would make it so that we can’t get it." [31]
Dr. Growney issued a stark reality check to the City Council. "The ordinance you're considering would impede our efforts to provide comprehensive medical care to women and detract from our ability to routinely provide life-saving measures for your wives, your sisters, your moms and yourself, even without elective terminations of pregnancy.” [32]
Dr. Joseph Castelli warned the City Council that the Comstock ordinance would force harm onto patients. "If I don’t have the proper equipment, people will lose blood. People will have to have a hysterectomy because I don’t have the right equipment to evacuate the uterus the way I should be able to," he said. "People will lose their fertility. People could lose their lives… This is not a fun game. There’s a lot on the line here… I think that none of us can really think of every clinical scenario that's going to come to pass if we lose access to just the basics." [33]
The Pueblo doctors’ warnings weren't just warnings for the City Council— they are warnings for every American citizen about the dangers that the Comstock Act poses to our health and lives.
“Read literally, the [Comstock Act] could be interpreted to outlaw almost any medical item that could be used in an abortion,” [34] including “operating room tables and speculum and suction cannulas and every instrument used in an abortion,” according to David Cohen, a law professor at Drexel University. [35] “The interpretation being advanced” by the anti-reproductive-rights movement “would apply to all kinds of articles – like surgical gloves — that are just basic equipment for health care,” explained Rachel Rebouché of Temple University’s law school. [36] “The law is as broad and as strict as its plain terms would indicate.” [37]
America needs YOU
Proponents of reanimating the Comstock Act are playing a perilous game with people's lives and freedoms, and with doctors’ abilities to provide patients with even the most basic of medical care. So, as tempting as it may be “to ignore this law, allowing it to remain on the books is too dangerous, and the stakes are too high.” [38] “Again, the Comstock Act has no exceptions and applies nationwide. Everyone implicated by the act, even pregnant people, are subject to punishment, and the penalties for violating the act are steep: federal prison time and fines.” [39] If Comstock were to be resurrected, “it would be absolutely catastrophic.” [40]
“For now, the current Department of Justice will not enforce the Comstock Act. As long as a Democrat sits in the White House, the law will remain in the dustbin of history. But a future Republican administration could exhume the law and make enforcing Comstock a top priority. Even worse, given that the Act has a five-year statute of limitations, an antiabortion administration could not only prosecute people for violations that occur in the future, but also for any violations occurring right now.” [41]
The Comstock Act is a serious threat to healthcare and reproductive freedom, and it “is too dangerous to stay on the books and remain unchallenged or in the shadows. We need a repeal bill now.” [42]
“With a repeal bill on the table, representatives would have to state publicly whether they defend a law written at a time when women couldn’t vote, couldn’t say no to their husbands’ sexual advances, were barred from most professions (including the legal profession), and had their legal identity disappear upon marriage. They should be forced to say whether they support banning not only abortion-inducing items but also lingerie and sex toys and any other items that could be put to ‘indecent or immoral use.’ And perhaps most forcefully, they should look their constituents in the eyes when they explain that, with Comstock still on the books for an antiabortion Department of Justice to enforce, there will likely be nowhere for them to go when they need an abortion resulting from pregnancy complications, inevitable miscarriage, fetal anomaly, rape, incest or unwanted pregnancy.” [43]
Only together can we defeat the threat of the Comstock Act. That means that each of us must do our part. Please, tell your friends and family about the Comstock Act, and contact your members of Congress to demand a repeal of this archaic and draconian law. You can find your members of Congress here. America needs YOU! So, let's do this!
Citations:
[1] Jonathan Friedman and Amy Werbel, opinion contributors. (2023, March 3). The comstock law at 150: A highly relevant cautionary tale for Today. The Hill. https://thehill.com/opinion/education/3882873-the-comstock-law-at-150-a-highly-relevant-cautionary-tale-for-today/
[2] Burnette, B. R. (2024, February 19). Comstock Act of 1873 (1873). The Free Speech Center. https://firstamendment.mtsu.edu/article/comstock-act-of-1873/
[3] National Archives and Records Administration. (2023, March 2). Featured document display: Vicecapades: 150th anniversary of the 1873 comstock act. National Archives and Records Administration. https://museum.archives.gov/featured-document-display-vicecapades-150th-anniversary-1873-comstock-act
[4] Burnette, B. R. (2024, February 19). Comstock Act of 1873 (1873). The Free Speech Center. https://firstamendment.mtsu.edu/article/comstock-act-of-1873/
[5] National Archives and Records Administration. (2023, March 2). Featured document display: Vicecapades: 150th anniversary of the 1873 comstock act. National Archives and Records Administration. https://museum.archives.gov/featured-document-display-vicecapades-150th-anniversary-1873-comstock-act
[6] Ibid. 5
[7] Lithwick, D. (2023, April 15). A 150-year-old law could ban abortion nationwide. Slate Magazine. https://slate.com/news-and-politics/2023/04/abortion-pill-ban-comstock-act-history-mifepristone-kacsmaryk.html
[8] Klibanoff, E. (2023, March 20). How an old law found new life in lawsuit seeking to revoke approval of Abortion pill. The Texas Tribune. https://www.texastribune.org/2023/03/20/texas-fda-abortion-pill-comstock-act/#:~:text=At%20its%20widest%20interpretation%2C%20the,an%20abortion%2C%E2%80%9D%20said%20Cohen
[9] Ibid. 8
[10] Lithwick, D. (2023, April 15). A 150-year-old law could ban abortion nationwide. Slate Magazine. https://slate.com/news-and-politics/2023/04/abortion-pill-ban-comstock-act-history-mifepristone-kacsmaryk.html
[11] Klibanoff, E. (2023, March 20). How an old law found new life in lawsuit seeking to revoke approval of Abortion pill. The Texas Tribune. https://www.texastribune.org/2023/03/20/texas-fda-abortion-pill-comstock-act/#:~:text=At%20its%20widest%20interpretation%2C%20the,an%20abortion%2C%E2%80%9D%20said%20Cohen
[12] Lithwick, D. (2023, April 15). A 150-year-old law could ban abortion nationwide. Slate Magazine. https://slate.com/news-and-politics/2023/04/abortion-pill-ban-comstock-act-history-mifepristone-kacsmaryk.html
[13] ‘the Ezra Klein Show’. (2024, March 8). How America’s two abortion realities are clashing. The New York Times. https://www.nytimes.com/2024/03/08/opinion/ezra-klein-podcast-mary-ziegler.html
[14] Ibid. 13
[15] Ibid. 13
[16] Lithwick, D. (2023, April 15). A 150-year-old law could ban abortion nationwide. Slate Magazine. https://slate.com/news-and-politics/2023/04/abortion-pill-ban-comstock-act-history-mifepristone-kacsmaryk.html
[17] Ibid. 16
[18] Rinkunas, S. (2024, February 29). 145 GOP members of Congress ASK Supreme Court to slash access to the abortion pill. Jezebel. https://www.jezebel.com/145-gop-members-of-congress-ask-supreme-court-to-slash-access-to-the-abortion-pill
[19] Lithwick, D. (2023, April 15). A 150-year-old law could ban abortion nationwide. Slate Magazine. https://slate.com/news-and-politics/2023/04/abortion-pill-ban-comstock-act-history-mifepristone-kacsmaryk.html
[20] Ibid. 19
[21] Ibid. 19
[22] Ibid. 19
[23] Ibid. 19
[24] Susan Rinkunas,
https://twitter.com/SusanRinkunas/status/1760760813566972259?t=s6Ju-lq32fzsVY524EHdTg&s=19
[25] Wharton, C. (2023, October 17). One reason medical students may bypass OB-GYN specialty & contribute to shortage? opt-out abortion training requirements. Students for Life of America. https://studentsforlife.org/2023/10/17/one-reason-medical-students-may-bypass-ob-gyn-specialty-contribute-to-shortage-opt-out-abortion-training-requirements/
[26] Rinkunas, S. (2024, February 29). 145 GOP members of Congress ASK Supreme Court to slash access to the abortion pill. Jezebel. https://www.jezebel.com/145-gop-members-of-congress-ask-supreme-court-to-slash-access-to-the-abortion-pill
[27] Ibid. 26
[28] Podcasts, S. (2023, April 15). Amicus with Dahlia Lithwick: Law, Justice, and the courts: Anti-abortion lawyers love this zombie law on Apple Podcasts
[29] Jent, Breeanna. (2022, December 12). Pueblo’s proposed abortion law would impede doctors from providing sufficient medical care, OB-Gyns Say. Colorado Springs Gazette. https://gazette.com/premium/pueblos-proposed-abortion-law-would-impede-doctors-from-providing-sufficient-medical-care-ob-gyns-say/article_5ca0e6c6-77f3-11ed-be16-b34b3fdaec33.html
[30] Ibid. 29
[31] Ibid. 29
[32] Ibid. 29
[33] Ibid. 29
[34] Perrone, M. (2023, April 8). What does the Comstock Act, a law from the 1870s, have to do with abortion pills?. PBS. https://www.pbs.org/newshour/politics/what-does-comstock-act-a-law-from-the-1870s-have-to-do-with-abortion-pills
[35] Klibanoff, E. (2023a, March 20). How an old law found new life in lawsuit seeking to revoke approval of Abortion pill. The Texas Tribune. https://www.texastribune.org/2023/03/20/texas-fda-abortion-pill-comstock-act/
[36] Perrone, M. (2023, April 8). What does the Comstock Act, a law from the 1870s, have to do with abortion pills?. PBS. https://www.pbs.org/newshour/politics/what-does-comstock-act-a-law-from-the-1870s-have-to-do-with-abortion-pills
[37] Cohen, D. S., & Rebouché, R. (2024, January 22). Opinion: It’s too dangerous to allow this antiquated law to exist any longer. CNN. https://www.cnn.com/2024/01/22/opinions/abortion-threat-comstock-act-must-be-repealed-cohen-donley-rebouche/index.html
[38] Ibid. 37
[39] Ibid. 37
[40] Rinkunas, S. (2024a, January 16). Congress needs to repeal this zombie 1873 abortion ban before it blows up in our faces. Jezebel. https://www.jezebel.com/congress-needs-to-repeal-this-zombie-1873-abortion-ban-1850333302
[41] Cohen, D. S., & Rebouché, R. (2024, January 22). Opinion: It’s too dangerous to allow this antiquated law to exist any longer. CNN. https://www.cnn.com/2024/01/22/opinions/abortion-threat-comstock-act-must-be-repealed-cohen-donley-rebouche/index.html
[42] Ibid. 41
[43] Ibid. 41
We must vote for an all blue congress to have any chance at all of getting rid of stupid laws that elevate racism and misogyny which Comstock elevates to the highest level. At the very least a democratic house and senate would be sure to get Trump impeached if he is
re-elected but it may very well entail having to impeach his vice president as well. An arbitrary abortion ban is not going to fly with female voters that’s why every woman of any age must vote. I have been vocal around my own family about the crap the republicans have pulled since the Trump presidency. There are some things that you don’t mess with when it comes to personal decisions regarding your healthcare or that of your family.