1883’s Comstockery Rises Again

Anthony Comstock, the blue-nosed anti-vice crusader, died in 1915, but the law he pushed Congress to pass back in 1883 remains on the books. The Comstock Act targets obscene literature, abortion, contraception, masturbation, gambling, prostitution, patent medicine, and forbids mailing anything “obscene, lewd, lascivious, filthy, or vile.”

Long believed unenforceable, the 150-year-old law is now resurfacing in the wake of the overturning of Roe v Wade. When U.S. District Judge Matthew Kacsmaryk ordered a hold on mifepristone, medication used in half of abortions nationally, appeals sent that case to the Fifth Circuit Court and then onto the U.S. Supreme Court. The case was argued in March, with Justices Samuel Alito and Clarence Thomas showing interest in the Comstock Act. Conservative groups like the Heritage Foundation like to bring Comstock up because one of its clauses prohibited sending though the mail “every article, instrument, substance, drug and medication that can possibly lead to an abortion.”

So who was this Anthony Comstock? He was born in 1844 to a strict religious family in New Canaan, Conn., and enlisted in the Union Army during the Civil War, where he was appalled by the behavior and profanity by his fellow soldiers.  After the war he moved to New York where he worked as a porter in a stock club and joined the YMCA. He became obsessed by what he considered obscene material and began collecting examples.

In his role as secretary of the New York Society for Suppression of Vice, he took his “chamber of horrors” to the Capitol and got Congress to pass the act he himself had drafted. The impressed lawmakers appointed Comstock a special agent of the U.S. Postal Service with authority to carry a gun and arrest alleged violators. Soon after, state legislatures passed versions of Comstock laws.

For the next 40 years, Comstock continue to serve as a special agent enforcing his draconian censorship campaign. Believing himself a guardian of public morals, he opened private mail and pursued those who offered birth control advice. With help from the New York Police Department, he managed to destroy 15 tons of books, 284,000 pounds of plates for printing books, and four million pictures and works of art. Those who ran afoul of the Comstock Art were jailed, sentenced to hard labor, and fined up to $2,000 (a large sum for the times). He boasted that he’d made 4,000 arrests and drove 15 people to commit suicide rather than serve a lengthy sentence.

In 1905, Comstock persuaded police to raid a performance of George Bernard Shaw’s play,  “Mrs. Warren’s Profession.” Comstock’s prudery led Shaw to brand America as “a provincial place, a second-rate country town.” It was Shaw who coined the term “comstockery” and said that it had made America the laughing stock of Europe. In return, Comstock derided the playwright as “an Irish smut dealer.”

It wasn’t until 1965 that the U.S. Supreme Court finally ruled unconstitutional one provision of the Comstock Act. Justice William Douglas, writing for the majority in Griswold v Connecticut held the Act infringed on the privacy rights of married couples to obtain contraceptives. It was a right Douglas inferred from guarantees provided in the Bill of Rights and found inherit in the 1st, 3^rd, 4^th, 5^th, 9^th and 14^th amendments to the Constitution. Single women did not achieve that right to access contraception until Eisenstadt v Baird in 1972 — 99 years after passage of the Comstock Act.

After the Supreme Court again overturned the Comstock Act, approving abortion in Roe v Wade in 1973, many thought the act was finally dead. That death notice was premature. The never-repealed zombie law is now energizing anti-abortion forces. These forces are  convinced that the next Republican administration can impose Comstock, restricting mailing of abortion medicines and equipment throughout the country without requiring so much as an act of Congress or a blessing from the Supreme Court.

While Comstock appears to be gaining new life, an even older law is being revived in Arizona. In April, the Arizona Supreme Court gave the go-ahead to enforcing an 1864 territorial law, predating Arizona 1912 statehood, that banned nearly all abortions. Back then, William T. Howell, a Michigan jurist appointed during the Civil War, brought a 441-page code of laws to the Arizona territory. Included was criminalization of abortions with the sole exception to save a woman’s life. Also forbidden were any medicinal substances intended to procure a miscarriage. Howell further set the age of consent at 10 years of age. While the Howell Code had granted some rights to women, the right to vote or to hold office were denied.

The revival of 19^th century laws like the Comstock Act (which even prohibited mailing anatomy textbooks to medical students) and the Howell Code (with arcane rules like penalties for dueling and refusing to join a posse) would seem ludicrous were it not for the fact that the Arizona State Supreme Court is making contemporary use of them. The Arizona jurists, not unlike Supreme Court Justices Alioto and Thomas, apparently turn to past history and originalism when it serves their interests.

Democrats in the Arizona Legislature have introduced legislation to repeal the Howell abortion statute, but so far they have been blocked by majority Republicans in both legislative houses. Arizona activists are now pinning their hopes on obtaining signatures on an initiative enshrining abortion rights in the state constitution.

Meanwhile at the national level, Sen. Tina Smith of Minnesota says she’s preparing to introduce legislation in Congress to repeal the Comstock Act. With 60 votes needed in the Senate alone, Smith’s legislation has about as much chance as Anthony Comstock himself showing up. The only upside would be requiring lawmakers to go on record regarding women’s reproductive rights.

With zombie laws now taking a vampire’s bite out of civil rights, it’s not surprising to have some abortion activists satirically asking if the next step is an attempt to repeal votes for women.