Anthony Comstock, the mutton-chopped anti-vice crusader for whom the Comstock Act is named, is back from the dead.
NY Times 7 April – By Michelle Goldberg
“Comstock died in 1915, and the Comstock Act, the notorious anti-obscenity law used to indict the Planned Parenthood founder Margaret Sanger, ban books by D.H. Lawrence and arrest people by the thousands, turned 150 last month. Had this anniversary fallen five or 10 years ago, it barely would have been worth noting, except perhaps to marvel at how far we’d come from an era when a fanatical censor like Comstock wielded national political power. “The Comstock Act represented, in its day, the pinnacle of Victorian prudery, the high-water mark of a strict and rigid formal code,” wrote the law professors Joanna Grossman and Lawrence Friedman. Until very recently, it seemed a relic.
Yet suddenly, the prurient sanctimony that George Bernard Shaw called “Comstockery” is running rampant in America. As if inspired by Comstock’s horror of “literary poison” and “evil reading,” states are outdoing one another in draconian censorship. In March, Oklahoma’s Senate passed a bill that, among other things, bans from public libraries all content with a “predominant tendency to appeal to a prurient interest in sex.” Amy Werbel, the author of “Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock,” described how Comstock tried to suppress photographs of cross-dressing women. More than a century later, Tennessee has banned drag performances on public property, with more states likely to follow.
And now, thanks to a rogue judge in Texas, the Comstock Act itself could be partly reimposed on America. Though the act had been dormant for decades and Congress did away with its prohibitions on birth control in 1971, it was never fully repealed. And with Roe v. Wade gone, the Christian right has sought to make use of it. The Comstock Act was central to the case brought by a coalition of anti-abortion groups in Texas seeking to have Food and Drug Administration approval of mifepristone, part of the regimen used in medication abortion, invalidated. And it is central to the anti-abortion screed of an opinion by Matthew J. Kacsmaryk, the judge, appointed by Donald Trump, who on Friday ruled in their favor.
It’s true that, as Kacsmaryk noted, the Comstock Act bars mailing “every 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 or for any indecent or immoral purpose.” The law imposes a five-year maximum prison sentence for first offenses and up to 10 years for subsequent ones. That’s why, almost as soon as the Supreme Court tossed out Roe, social conservatives started clamoring for the Comstock Act to be enforced against medication abortion. When 20 Republican attorneys general wrote to Walgreens and CVS warning them against distributing abortion pills, they invoked the Comstock Act.
Many legal scholars see this invocation of the Comstock Act as legally dubious. As David S. Cohen, Greer Donley and Rachel Rebouché explain in the draft of a forthcoming article, circuit court cases in the 1930s found that the Comstock Act applies only to materials meant to be used unlawfully. But for judges hellbent on banning abortion, as we’ve seen, precedent doesn’t mean much. “The Comstock Act plainly forecloses mail-order abortion in the present,” wrote Kacsmaryk. He added, “Defendants cannot immunize the illegality of their actions by pointing to a small window in the past where those actions might have been legal.”
On Friday a Washington State judge issued an opinion directly contradicting Kacsmaryk’s and ordering the F.D.A. to continue to make mifepristone available. The dispute now is likely headed to the Supreme Court. The emphasis on Comstock in Kacsmaryk’s decision, tweeted the legal scholar Mary Ziegler, could appeal to “self-proclaimed textualists” on the Supreme Court like Brett Kavanaugh and Neil Gorsuch, who emphasize the ordinary meaning of words in a statute, outside the context of legislative intent or history.
Such a reading of the Comstock Act could do far more than prohibit patients from getting mifepristone by mail. “Absent the narrowing construction applied by the federal circuit courts, the law’s plain terms could effectively ban all abortion nationwide because almost every pill, instrument or other item used in an abortion clinic or by a virtual abortion provider moves through the mail or an express carrier at some point,” wrote Cohen, Donley and Rebouché.
There is something head-spinning about how quickly Comstock’s spirit of punitive repression has settled on a country where, not long ago, social liberalism seemed largely triumphant, with the rapid acceptance of gay marriage, the growing visibility of trans people and over-the-counter access to emergency contraception. The notion that it’s the government’s job to protect people from vice appeared increasingly passé as states legalized marijuana and gambling. It’s true that even before the end of Roe, conservatives had a lot of success rolling back reproductive rights in red states. But just a year ago, the idea of a judge using the Comstock Act to halt medication abortion nationwide would have seemed hysterical.”