The Comstock Act Needs To Go

[ Posted Tuesday, April 2nd, 2024 – 16:18 UTC ]

Up until the advent of Donald Trump in American politics, there had been a pervasive attitude among many politicians that there were certain norms and traditions that had been established and long-followed, so there was no need to codify any of them into actual laws. One of these was the belief among Democrats that Roe v. Wade was settled law and that as time went on it had become increasingly impossible to even consider that it would ever be overturned. The judiciary had staked out certain rights, so there was no need for Congress to enact the same rights -- doing so would actually be redundant.

This way of thinking, obviously, was wrong. It should have been obvious -- and it was, to the pro-choice activists. The anti-abortion side, for decades, had been racking up incremental wins in state after state, imposing increasingly-tough hurdles for women to jump over in order to exercise what the Supreme Court had said was their right. Democrats mostly looked the other way while this was happening.

Part of the problem was that abortion didn't become a truly partisan issue until rather recently. Throughout the 1980s and 1990s, there were pro-choice Republican politicians as well as anti-choice Democrats. There was also a large contingent of Democrats who shied away from the issue, perhaps giving it lip service during a political campaign but mostly preferring not to talk about it. The danger was abstract and hypothetical, after all -- oh, sure, some future Supreme Court could overturn Roe v. Wade, but it wasn't seen as being in any sort of acute or immediate danger. It wasn't the number-one issue for many voters, to put this another way, therefore Democrats were free to largely ignore it (or just mention it briefly during campaign season).

Relying on the judiciary to continue to protect abortion rights was, obviously, either misguided or shortsighted. Now that the court has thrown Roe out with the Dobbs ruling, the issue has come raging back and may in fact be one of the central issues in the 2024 election.

It didn't have to be this way, of course. Congress could have acted -- at any time during the half-century when Roe was in force -- by codifying the exact provisions and limitations on abortion contained within the Roe decision. The House and Senate could have passed a bill and put it on the president's desk to sign and then the provisions of Roe would no longer be open to any judicial interpretation under the sun, they would be written down in black and white.

The Supreme Court could have declared such a law unconstitutional after it passed, but that would have been a much higher bar for them to cross than just reversing Roe. The Dobbs decision was, in essence, the court saying: "Whoops, we got it wrong back in the 1970s, here's what that court should have ruled." But when Congress and the president enact a law, it makes it harder (both legally and politically) to declare the law unconstitutional and throw it out.

I say all of this as a preamble to the real subject of today's column, which is an incredibly old and obscure federal law that has been on the books for 150 years and which now cries out for legislative action. Known as the "Comstock Act" (or "Law," or "Laws"), this is a vestige of 19th-century Puritanism that has never explicitly been repealed in its entirety. And since it is still officially on the books, it is technically still federal law. Which was (rather ominously) pointed out during the recent arguments for yet another abortion case before the Supreme Court (the one dealing with one of the drugs in the standard medication abortion prescription). The two most conservative justices on the court openly flirted with citing the Comstock Act in order to take one of the abortion drugs off the market for everyone.

One senator with a rather unique perspective is poised to fight back, which is good to see. Senator Tina Smith from Minnesota -- who is also "a former Planned Parenthood executive" -- is ready to lead the charge to toss out the remaining outdated provisions of the Comstock Act of 1873. From an article she wrote today for the New York Times:

Let me take a step back and explain how ridiculous it is that we're even talking about this legislative relic today. The Comstock Act hasn't been broadly enforced since the 1930s. The Biden administration considers it utterly irrelevant. Many legal experts consider it dead letter law. And once you know its back story, it becomes clear why no one has paid much attention to it in nearly a century.

Back in the 1860s, a former Civil War soldier from rural Connecticut named Anthony Comstock moved to New York City for work. He was shocked and appalled by what he found. Advertisements for contraception! Open discussions of sexual health! It all struck Comstock as terribly lewd and anti-Christian.

So he made it his mission to clean up society, creating the loftily named New York Society for the Suppression of Vice and gathering evidence for police raids on places that distributed material he thought was obscene or promoted indecent living. In the early 1870s he took his crusade to Washington, lobbying for federal legislation that would empower the post office to search for and seize anything in the mail that met Comstock's criteria for being "obscene," "lewd" or just plain "filthy." Morality, as determined by Comstock, would be the law of the land, and Comstock himself would be its enforcer, appointed by Congress as a special agent of the post office.

In a fit of Victorian puritanism, Congress passed the Comstock Act into law. But it quickly became apparent that Comstock's criteria were unworkably vague. In its broad wording, the law not only made it illegal to send pornography through the mail, it also outlawed the sending of medical textbooks for their depictions of the human body, personal love letters that hinted at physical as well as romantic relationships, and even news stories.

The whole thing was very silly and impracticable, and that's why the Comstock Act was relegated to the dustbin of history.

It also outlawed sending contraceptive devices or substances through the mails, but that part of it was tossed out by an act of Congress in 1971, after a Supreme Court decision legalized contraceptives. But the rest of it needs to go too. Because as we've all seen, relying on the judiciary to say: "Well that was deemed unconstitutional decades ago" is no longer good enough.

Democrats probably won't be able to overturn the Comstock Act with the current composition of Congress, and some even worry that making an attempt to overturn it would only draw attention to it and perhaps bolster the argument that this arcane law should still be followed. But it's that kind of thinking that led to the inaction on Roe, and to where we find ourselves now.

I applaud Senator Smith for her effort, and will leave you today with the actual text of the Comstock Act as it stands today. This is from federal law, and is included in its entirety so you can see how ridiculously outdated it truly is [Note: it is written in legalese and begins with a long list before it gets to the actual verb in the sentence: " declared to be nonmailable matter..."]:

Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

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; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing --

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001(e) of title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

The term "indecent", as used in this section includes matter of a character tending to incite arson, murder, or assassination.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


19 Comments on “The Comstock Act Needs To Go”

  1. [1] 
    Kick wrote:

    Democrats probably won't be able to overturn the Comstock Act with the current composition of Congress, and some even worry that making an attempt to overturn it would only draw attention to it and perhaps bolster the argument that this arcane law should still be followed.

    Exactly right, but this asinine de facto federal abortion ban falls squarely under the column of "old ideas" that Biden keeps referring to when speaking about Trump and the rightwing regressive movement that wants to legislate their religious beliefs onto everyone and take US all back to the 1870s in more ways than just this one.

    Democrats need to introduce a bill repealing this archaic law and thereby force every single federal legislator to take a public position, and President Biden needs to make clear that Trump and the GOP's agenda consists of "old ideas" and dragging this country back to the Reconstruction Era."

  2. [2] 
    nypoet22 wrote:

    I can see it now...

    Biden: now a lot of people may not know this, but back in 1870 there were a lot of people... no, I don't remember it firsthand, THAT'S how LONG ago it was! but back in 1870 there were a lot of people who were very mad that our country allowed people the freedom to make their own decisions about their bodies. especially people who had formerly been enslaved. well, they couldn't bring slavery back, but they could cause quite a bit of mischief for people by taking away their personal freedoms.

    now I know there are many people even today who want to make America... THAT way... again, but I think compared to 1870 we're a bit better off right now. anyone who agrees with me on that should support our efforts to repeal this thing. I mean, do you really want some angry old ... no, not me, but i'll give you one guess... some angry old man telling you what you're allowed to do with your own body?

  3. [3] 
    Elizabeth Miller wrote:

    "Biden ... you don't have to love him but you do have to vote for him."

    How's that for a bumper sticker!? :)

    I heard in on CNN today ... sorry, can't remember who said it.

  4. [4] 
    MtnCaddy wrote:


    Why “blue tsunami?”

    Would you REALLY rather be Trump and the Republicans right now?

  5. [5] 
    Elizabeth Miller wrote:


    How do you mean ... ridin' high in the polls? :-)

  6. [6] 
    Elizabeth Miller wrote:


    Oh, that was nice ... very nice!

  7. [7] 
    MtnCaddy wrote:

    Elizabeth the only poll that counts is called “Election Day.” You can do all the hand wringing you want but polls this far out from November are useless.

    How well have the Repugs done since Vlad and Comey elected Trump in 2016? How about that Red Wave two years ago?

    Again, would you REALLY rather be Trump and the Repugs right now?

  8. [8] 
    Elizabeth Miller wrote:

    Again, Caddy, I'd really rather to talk about something else. November will be here soon enough.

    And, as for hand wringing ... Biden is doing enough handwringing with regard to Israel's blunderbuss in Gaza to last an eternity without the need for any of us to be handwringing about anything, evermore.

    In fact, if Biden doesn't soon start doing something other than handwringing over what Israel is doing in
    Gaza, then he'll probably be a one-term president.

  9. [9] 
    nypoet22 wrote:

    trump is also hedging his bets on netanyahu, and for biden it's an opening to actually stick to his principles. he must know that the reporting on gaza is false, and he should stand up and say so. yes bibi is a terrible partner, but the anti-israel bias in reporting on the war has been egregious.

  10. [10] 
    Kick wrote:


    This is perfect. :)

  11. [11] 
    Elizabeth Miller wrote:


    [Biden] must know that the reporting on gaza is false ...

    The reporting on Gaza is false? That is SUCH a spectacularly generalized statement that it loses all meaning.

    Quite obviously, the IDF are well on the road to losing any semblance of being a professional military. This is what can happen after decades of occupation and recurring cycles of violence and over-reaction.

    The problem Israel now faces goes far above and beyond the fact that Netanyahu is a "terrible partner".

  12. [12] 
    Elizabeth Miller wrote:

    News reports say that Biden has just told the Israeli leader that an "immediate ceasefire" is needed.

    Of course, that report MAY be false. But, I don't think so.

  13. [13] 
    Elizabeth Miller wrote:

    While I concur with the need for an immediate ceasefire in Gaza, Biden now needs to act and impose conditions on military aid for Israel.

  14. [14] 
    nypoet22 wrote:

    no, he really doesn't. and if we're going to split hairs then sure, that should read, "the reporting in gaza is largely based on data that are exaggerated, approached from a skewed context or falsified outright."

  15. [15] 
    Elizabeth Miller wrote:

    You know that even that statement - the reporting in gaza is largely based on data that are exaggerated, approached from a skewed context or falsified outright - is too generalized to mean anything and you also know that it refers to numbers of civilians killed and not to the strategy in the overall that is being used by Israel.

  16. [16] 
    Elizabeth Miller wrote:

    By the way, your reference to "splitting hairs" is unintentionally hilarious in the context of how you have been treating/interpreting my comments here for the last couple of years.

  17. [17] 
    Elizabeth Miller wrote:

    no, he really doesn't.

    He does if he wants to get re-elected.

  18. [18] 
    nypoet22 wrote:

    an "immediate ceasefire" is one-sided if the president can only influence one of the two sides to stop fighting. as things stand, he can influence neither. if the president were to try to coerce Israel to stop, they wouldn't necessarily do so. and that show of weakness actually would lose an election.

  19. [19] 
    MtnCaddy wrote:


    Yes, you really nailed this one. It’s a talking point par excellence.

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