MARCH 3, 1873: THE COMSTOCK LAW
Author’s note: Having just written about the anti-abortionist Horatio Storer, it’s serendipity that based on my journal of events in women’s history, I can write next about Anthony Comstock, another nineteenth-century opponent of women’s reproductive rights.
On March 3, 1873, President Ulysses S. Grant signed an Act for the Suppression of Trade in and Circulation of Obscene Literature and Articles of Immoral Use. It was passed as an amendment to the Post Office Consolidation Act of 1872. In an era of rampant government corruption, Republicans sought to improve their reputation by supporting rectitude and suppressing smut.
It was the first federal law to categorize distributing materials about contraception or abortion as criminal. It’s still on the books.
The law criminalized mailing any “obscene, lewd, or lascivious book, pamphlet, picture, paper . . . [or] any article or thing designed or intended for the prevention of conception or procuring of abortion.” The law would be amended to include anatomy texts and European art books. Fines were levied on letters containing curse words. Initially, maximum fines were $5,000 ($130,000 today); maximum sentences were ten years in jail.
Known as the Comstock Act, it had been drafted by Anthony Comstock, a devout Christian and chastity crusader. Born in 1844 into a family of Puritan descendants, he idealized his mother as a paragon of piety. After her death in childbirth, he quit school and failed as a dry goods salesman. After his older brother died at Gettysburg, he enlisted in the infantry. He was appalled by the smoking, cursing, gambling and drinking of his militia mates. They didn’t like him either because he threw out his daily whiskey ration rather than share it.
He was equally uncomfortable living in New York City. Other young men in his boarding house enjoyed billiards, boxing, smut and sex. Instead, in 1866, Comstock joined the Young Men’s Christian Association. It had been founded in London in 1844, to combat the temptations of urban life with “muscular Christianity.” The YMCA expanded to America in 1851, sponsoring summer camps and sports clubs. Both basketball and volleyball originated in YMCA gyms.
Comstock believed that pornography resulted in sexual diseases and that prostitution, immigration and contraception threatened the social order. The YMCA made him secretary of its Committee on the Suppression of Vice and sent him to Washington to lobby for an anti-obscenity bill.
Comstock’s first draft of the bill was full of spelling errors, so he sought help. Supreme Court Justice William Strong, a Yale-trained jurist, wrote the final draft. Speaker of the House James Blaine (R-ME) pledged to pass the bill before the end of the lame-duck session in March 1873. Voting continued into a Saturday night. Before the bill passed at 2:00 a.m., Comstock had left the gallery to observe the Sabbath. Later that week, President Grant signed the bill, Comstock turned twenty-nine and Congress appointed him a Special Agent of the US Postal Service. The job came with a badge and a train pass. Because the YMCA paid him, Comstock refused a government salary.
Records reveal that within a year he had seized twelve tons of offensive literature and 200,000 salacious items, including photographs, sheet-music, playing cards and what he inventoried as “obscene and immoral rubber articles.” He also arrested grifters, counterfeiters and lottery operators. Alarmed by his grandstanding, the YMCA severed its connection with Comstock and the New York Society for the Suppression of Vice. Comstock’s showmanship attracted donors like J.P. Morgan and Samuel Colgate, who underwrote that enterprise.
Not all his prosecutions succeeded. In 1875, Victoria Woodhull and Tennessee Claflin, glamourous sisters and controversial suffragists, published scandalous accounts of a divorce trial involving Henry Ward Beecher, a prominent preacher who was even more famous than his sister Harriet Beecher Stowe. Because their weekly was mailed to subscribers, Comstock arrested them. Because the law did not mention newspapers, they were acquitted. The sisters mocked him as a Protestant Jesuit, leading an American inquisition. Comstock had the law amended.
George Bernard Shaw coined the term “comstockery” to describe “excessive opposition to supposed immorality,” a synonym for prudery. Based on his diary, Comstock likely was sexually repressed. He wrote often about “battling Satan” before surrendering to masturbation. In 1871, he married Margaret Hamilton, ten years his elder. After their only child died in infancy, they adopted another daughter.
The more newsworthy Comstock was, the more money he raised. He expanded his purview to censor literature, plays and political speech. He attacked proponents of “free love,” whom he described as “long-haired men and short-haired women,” seizing the vaginal “Comstock syringes” they sold at conventions. He grew mutton-chop whiskers to disguise a facial scar caused by a knife attack in 1874. Seventy thousand people petitioned Congress to curtail his power; six thousand attended an “Indignation Meeting” at Boston’s Faneuil Hall. In 1900, he attempted to arrest socialist Emma Goldman for “anarchist speech” but only succeeded when she promoted contraception.
Comstock’s last campaign was against Margaret Sanger. The public health nurse hoped to prevent indigent immigrant women from killing themselves, by attempting to end unwanted pregnancies with lye or knitting needles. Sanger’s remedy was providing information about birth control. In 1914, a federal grand jury indicted her under the Comstock Act for distributing copies of a pamphlet titled Family Limitation. She fled to Europe. Damned for deserting her husband and abandoning her children, she returned in 1915 to face a felony charge. While awaiting trial, her five-year-old daughter died of pneumonia. Rather than make her a martyr, the government dropped the case.
Comstock died in 1915, at seventy-one. By the Roaring Twenties, he was a laughingstock, ridiculed by H.L. Mencken, F. Scott Fitzgerald and Sinclair Lewis. In the 1930s, the Comstock Act faced legal challenges. United States v. One Book Called Ulysses (1934) questioned whether James Joyce’s 1922 novel was obscene. The US Federal Court for the Southern District of New York determined, 2-1, that it was not. The decision withstood an appeal and established a new standard: a work of art should be judged in its entirety, not by excerpts. In 1957, in Roth v. United States, the Supreme Court determined that the test for obscenity was whether “the average person, applying contemporary community standards,” found the material prurient.
Since Griswold v. Connecticut (1965) allowed married couples to use birth control, Comstock no longer applies to contraception. The law has neither been repealed nor applied in almost a century. Nor has its ambiguous language about abortion been clarified. Many legal scholars consider it obsolete, but it has been resurrected by anti-abortionists. In 2019, it was used in Texas to establish a “sanctuary city for the unborn.”
In March 2024, the Supreme Court heard another case originating in Texas, FDA v. Alliance for Hippocratic Medicine, a coalition of anti-abortion doctors. It challenged the authority of the Food and Drug Administration to approve mifepristone, the medication used in two-thirds of abortions in the US. Conservative justices repeatedly referenced Comstock. When asked by Justice Alito, the Solicitor General responded that the Comstock Law did not apply, because the “FDA was not affirmatively . . . mailing [mifepristone].” In June 2024, the Court decided unanimously that the doctors did not have standing.
The next challenge will be to the legality of mailing abortion medications across state lines. Three Republican state attorneys general, from Idaho, Kansas and Missouri, filed a suit in October 2024 to reverse FDA regulations that have expanded access to mifepristone. The AGs brought their suit to Judge Matthew Kacsmaryk, in the US District Court in Texas, an anti-abortion Trump appointee, who heard the earlier case.
Reproductive rights advocates anticipate that the Trump administration will decline to defend the FDA. Last week, on February 25, GenBioPro, the country’s largest manufacturer of abortion pills, asked to be added to the list of defendants. If the judge grants the company’s request, it would lead the defense, represented by Democracy Forward, a legal nonprofit.
Mifepristone is effective in the first twelve weeks. In states where abortion is legal, providers have mailed more that 10,000 pills per month to patients in states where it is illegal. Abortion opponents want to outlaw the medication for anyone under eighteen, eliminate telehealth consultations, require patients to pick up abortion prescriptions in person, limit retail pharmacies like CVS from supplying pills and challenge the shield laws which protect providers.
Confidant that the next case challenging the legality of dispensing mifepristone by mail will prevail, one opponent boasted, “We don’t need a federal ban on abortion when we have Comstock on the books.”
SOURCES:
Photographs: public domain.
Anna Bates, Weeder in the Garden of the Lord: Anthony Comstock's Life and Career (University Press of America, 1995).
Devin Leonard, “The Life and Times of a True American Moral Hysteric,” Literary Hub (May 2, 2016), https://lithub.com/the-life-and-times-of-a-true-american-moral-hysteric
Malladi Lakhsmeeramya, “Anthony Comstock (1844-1915),” Embryo Project Encyclopedia (May 23, 2017), https://embryo.asu.edu/pages/anthony-comstock-1844-1915
Amy Sohn, The Man Who Hated Women: Sex, Censorship, and Civil Liberties in the Gilded Age (Farrar, Straus, Giroux, 2021).
“Anthony Comstock,” https://postalmuseum.si.edu/exhibition/behind-the-badge-postal-inspection-service-duties-and-history-history/anthony-comstock
Amy B. Werbel, Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (Columbia University Press, 2019).
"Roth v. United States." Oyez, www.oyez.org/cases/1956/582.
Amy Sohn, “Why the 1873 Comstock Law Still Matters Today,” Foundation for Individual Rights in Expression (October 2, 2024), https://www.thefire.org/research-learn/why-1873-comstock-act-still-matters-today
“Supreme Court Preserves Access to Abortion Pill,” https://www.scotusblog.com/2024/06/supreme-court-preserves-access-to-abortion-pill/
Tobi Raji, “Five Key Moments from Supreme Court Arguments on Abortion Pill Case,” Washington Post (March 27, 2024), https://www.washingtonpost.com/politics/2024/03/26/moments-supreme-court-arguments-abortion-pill/
Lars Noah, “Medication Abortion and the Mails: The Ghost of Anthony Comstock Rides Again?” Georgia State University Law Review, vol. 41 forthcoming (February 2, 2025), https://ssrn.com/abstract=5121876
Lisa Lerer, “Primary Abortion Pill Maker Moves to Enter Court Battle Over FDA Rules,” New York Times (February 26, 2025), https://www.nytimes.com/2025/02/25/us/politics/abortion-pill-trump-administration-lawsuit.html