Buzz
What strikes me as the most peculiar aspect of the recent mifepristone court case isn’t the Texas judge’s decision to halt FDA approval of a drug approved over two decades ago, nor the conflicting ruling from a Washington judge mandating that the FDA maintain the drug’s availability. The truly odd part is the Texas ruling’s reliance on the Comstock Act—an outdated and nonsensical law enacted in 1873 with a controversial past.
Who Was Comstock?
Anthony Comstock, a fervent activist, headed the YMCA’s Committee for the Suppression of Vice. He successfully campaigned for state and federal laws banning the mailing of materials deemed “lewd” or “obscene.”
The 1873 legislation named after him was sweeping, ambiguous, and extensive. It declared that no “obscene, lewd, or lascivious” materials, including books, pamphlets, pictures, or advertisements related to contraception, abortion, or immoral uses, could be mailed. This also applied to any written or printed material providing information on how to obtain such items, with severe penalties including hefty fines and imprisonment for violators.
Appointed as a “special agent” by the Post Office, he was granted the authority to carry firearms and conduct raids. While the federal law required proof that obscene materials were mailed or advertised, he also enforced other obscenity statutes unrelated to postal services. A New York law from 1868 even entitled him to a portion of the fines he collected.
Comstock didn’t passively wait for reports of “obscene” materials—he actively ordered contraceptives and controversial books under pseudonyms, then arrested the creators and distributors. He allegedly claimed responsibility for 4,000 arrests and 15 suicides linked to his campaigns.
For nearly 100 years, the Comstock Act imposed censorship on books and magazines
Although the recent court case centers on abortion medication, the act historically enabled widespread censorship across the U.S. publishing industry.
Anatomy textbooks? Deemed obscene. Publications on reproductive health? Similarly labeled as obscene. Even timeless literary works like Lysistrata and the Canterbury Tales were classified as obscene, leading to charges against their publishers.
These were not minor penalties; entire print editions were confiscated and destroyed, with publishers facing prison sentences. As reported by Time magazine, here’s how the legal battle unfolded against the book Ulysses:
In 1918, Ezra Pound sent a portion of the manuscript to Margaret Anderson, who published it in her
Little Review.
The U.S. Post Office Department confiscated and incinerated every copy mailed through the postal system.
The definition of indecent materials extended beyond sexual content; it was initially broad and grew even more expansive over time. By 1908, topics like arson and assassination were added to the list of prohibited subjects.
Consider Cupid’s Yokes, a pamphlet advocating for individuals to choose partners based on love rather than being trapped in economically and sexually oppressive marriages. While the author secured a presidential pardon, a publisher who reprinted it a year later was accused of corrupting the “moral, physical, and spiritual life of youth” and was sentenced to prison.
Over time, court rulings gradually limited the reach of the Comstock laws, as they blatantly conflicted with First Amendment protections. However, this process was incredibly slow. For instance, it wasn’t until 1958 that the Supreme Court determined a magazine isn’t inherently obscene simply because it targets gay readers.
Contraception and Abortion
The 1873 law, passed a full century before Roe v. Wade, banned the mailing of any item “designed or intended for preventing conception or inducing abortion.” This included surgical tools potentially used in abortions, instructional booklets on the rhythm method, and even advertisements or correspondence about where to obtain or use such items.
In 1936, the U.S. government filed a lawsuit against a shipment of diaphragms (a common legal framework for such cases), initiated by Margaret Sanger of Planned Parenthood. The case, titled United States v. One Package, containing 120, more or less, Rubber Pessaries to Prevent Conception, established that the Comstock Act didn’t apply to items with lawful purposes. Doctors could then prescribe diaphragms to women whose health might benefit from spacing pregnancies.
It wasn’t until 1965 that Griswold v. Connecticut affirmed the right of married couples to use contraception. By 1972, this right was expanded to include unmarried individuals, based on the principle that “the individual, married or single, has the right to be free from unwarranted government intrusion in decisions as personal as whether to bear or beget a child.”
However, last week, a Texas judge ruled that none of these considerations are relevant; the 1873 statute explicitly prohibits mailing abortion pills, and thus, mailing them is illegal. This decision disregards the fact that the law has been deemed unconstitutional and unenforceable for many years.
