What Is The Comstock Act?

During the recent Supreme Court argument over Mifepristone, Justices Alito and Thomas both raised the possibility that a case brought under the Comstock Act would be stronger than the one being argued. (Legal scholars have noted the multiple deficiencies in the current case, which–had Trump not appointed an intellectually-dishonest extremist to a Texas federal judgeship–would never have reached the Supreme Court.)

What, you may ask, is the Comstock Act?

Back in 1999, I edited “Free Expression in America: A Documentary History” for Greenwood Press. Producing the book required me to identify, reprint and explain documents that told the evolving story of America’s free speech jurisprudence. I began with “Foundations of Liberty”–the Magna Carta, Areopagitica and Cato’s Letters–proceeded through Common Sense, the Virginia Declaration of Rights, the First Amendment and several others, and on through America’s various battles with censorship to the late 1990s.

In a section titled “1900-1950: A Half-Century of Paternalism” I included “Birth Control and Public Morals: An Interview with Anthony Comstock.” I introduced the interview by noting that contemporary readers might come away considering Comstock a caricature. (Even at his most influential, he was widely ridiculed.) Comstock founded the Society for the Suppression of Vice, and he saw vice pretty much everywhere he looked. He campaigned against the publication of “vile books,” which he argued were responsible for “debauching” young men, and it isn’t an exaggeration to say that he considered any publication dealing in any way with sex to be “vile.” He was particularly offended by then-current efforts to provide women with birth control information.

The Act reads as follows:

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 non-mailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” 

The Comstock Act was passed in 1873, and although it hasn’t been explicitly repealed, most lawyers believe that intervening case law has rendered it unenforceable. 

Justices Alito and Thomas are so intent upon banning abortion they have evidently overlooked the sweep of the Act, which would go far, far beyond preventing abortifacients from being mailed. Comstock was intent upon preventing the dissemination of anything and everything he found “vile,” including, in his own words “intemperance, gambling and evil reading.” He classed contraceptives with pornography, and when questioned about that, replied that “If you open the door to anything, the filth will pour in and the degradation of youth will follow.”

Even during his lifetime, Comstock was widely regarded as an unbalanced anti-sex zealot; his Society for the Suppression of Vice was intent upon censoring books, magazines or other materials describing or touching on sex, very much including medical information and information about contraception. (The Comstock Act at one time prevented the mailing of anatomy textbooks to medical students.)

In Comstock’s fanatic view, “Any indecent or immoral use” covered a lot of ground, much of it misogynistic. There’s a reason a recent biography of him is titled “The Man Who Hated Women.”

Trying to resuscitate Comstock’s “zombie law” will raise some interesting legal questions. Can the anti-abortion provisions be severed from the clearly unconstitutional censorship provisions of the Act? Does the prohibition against use of the U.S. mail extend to Federal Express and other private carriers? 

Are Alito and Thomas so desperate to control the lives and reproductive liberties of American women–so desperate to take us back to a time when women were breeding property– that they’re willing to revive Comstockery

19 Comments

  1. Welp, then maybe it’s time to ban those Playboy subscriptions, too. Or maybe the “honorable” justices Alito and Thomas are too intent on cherry picking.

  2. We need a solid blue house and filibuster proof blue senate. The Comstock act should be repealed as one of the first orders of businesses. a second order of business might be impeaching Clarence Thomas and Sam Alito.

  3. I’m all in favor of impeaching Clarence Thomas. His wife’s activities cast all kinds of doubt on his ability to reach impartial decisions, and his acceptance of
    expensive gifts reeks of political corruption. He ain’t no Thurgood Marshall, that’s for sure.

  4. I’m all in favor of impeaching Clarence Thomas. His wife’s activities cast all kinds of doubt on his ability to reach impartial decisions, and his acceptance of
    expensive gifts reeks of political corruption. He ain’t no Thurgood Marshall, that’s for sure.

  5. If you want to know about the Comstock Act as it was applied – read The Trials of Nina McCall. Alito and Thomas must have clerks who are coming up with these ideas – 13th/14th century “quickening” idea and now this.

  6. I hope Republicans know that men also wish to control their fertility through, for instance vasectomies and condoms. Men might start rebelling once they realize that those on the far right want to limit sex to procreation.

  7. Methinks the man was all too obsessed with sexuality. Maybe like Jedgar, he was a closeted clown! the sensors get to read all the stuff they want no one else to see, don’t they? I k now, it’s a dirty job, but someone has to do it.
    There is not a single good reason for Alito, or Thomas, to remain on the bench.

  8. It isn’t all that surprising that Alito and Thomas would introduce the idiocy of Comstock. These two corrupt “justices” (small “J” intended) keep exposing themselves as the intellectual dwarfs they have always been and their comments/decisions reflect more ideology than actual jurisprudence.

    I totally agree with the above comments to get these two fossils off the SCOTUS and replace them with people whose brains aren’t calcified.

  9. Alito and Thomas want to appeal to the Christofascists in MAGA. There are a bunch of them scattered throughout the South and Midwest.

    I thought the sexual revolution disposed of all laws related to vices or sins. I didn’t know the Comstock Act was a thing anymore. For that matter, I didn’t know the Espionage Act was a thing either until the Justice Dept charged Julian Assange.

    The more wins these Christofascists obtain in the courts, the more they try to gain more wins. It’s reached the stage of a dystopian reality. I wonder why these warriors aren’t against war due to their destruction of human life. The US has been in one war after another since WW2. Seeing that wars kill people and violate one of the Ten Commandments, you’d think that would be an easy target for our Christian warriors, but there is only a tiny peace movement in the US, and it is coming from Leftists.

    I know from the comments on X by MAGAs that they were livid about sharing Easter with Int’l Transgender Day this past Sunday. I explained to many of them that Easter encroached on Trans Day this year, and I could sense their heads exploding. LOL

  10. It is a shame that Comstock’s, Alito’s and Thomas’ fathers weren’t castrated as young boys. The same can be said about those three men and all of the fathers of radical right wingers.

    Yep, I’m all for turning the tables on misogynistic male a**holes and there are current members of state legislatures and the US House and Senate that should be forcibly castrated.

  11. Here’s a potential cure. Let’s have a bill that that creates a standing committee to evaluate the laws impacted by SCOTUS rulings and recommend making that law, or any part of a law, should be revoked. The Congress must, at any regular meeting in each year must present the listed bills to the members for a vote to void the bill or any sections of the bill.

    Aside from that, I think Jack Smith should request a reassignment in the documents case. Additionally I believe that judge Cannon should be required to read the “Presidential Records Act”.

  12. I think that there are two wings to the right wing.

    One is people who are afraid of everyone else who is different, which naturally is nearly everyone else. They follow those who promise to protect them.

    The other wing of the right wing is those so full of ego that they believe that they are super-powered (by God?) to control everyone else.

    Man plans and God or god or nature laughs.

    The frightened, led by the angry, are just so puny a force against the Universe.

  13. To Sheila’s last paragraph,
    The answer is yes and yes! But why? I really haven’t delved into Alito, but Thomas is a fairly dishonest broker. And for these two to link up on something like this, makes me surmise that Alito is a sack full of undiscovered chicanery!

    And for what it’s worth, the apostle Paul basically stated that ones conscience on these matters should be there guide as long as they do not infringe on others. In other words, whose conscience should one follow? Follow your own conscience? Or follow someone else’s? Everyone’s conscience is their guide. Those that seem to not have one, are subject rational guidance by the superior authorities.

    Paul actually stated in Romans the second chapter, “do you, however, the one teaching someone else, not teach yourself? You, the one preaching, “Do not steal,” do you steal? 22 You, the one saying, “Do not commit adultery,” do you commit adultery? You, the one abhorring idols, do you rob temples? 23 You who take pride in law, do you dishonor God by your transgressing of the Law? ”

    Obviously those who are expressing superior morality, are more than likely guilty of the same things they roial against. They practice unabashed hypocrisy, “Don’t do what I do, do what I say!”

    These so-called moral giants, do not follow scripture, but follow works of the flesh, and because of a guilt which keeps on poking the conscience, they try and force that on everyone else.

  14. Comstock has probably been effectively repealed by interim case law, but just to make sure given the makeup of the Supreme Court in deciding otherwise, let’s repeal it by an act of Congress lest some Alito resurrect it for application today. Such a bill to repeal need not be filed considering a hostile House today, but rather in early 2025 after Democrats have swept to a trifecta in November, 2024.

  15. Let’s hope Gerald Stinson is prescient. Excellent column, as usual, Sheila.

  16. I don’t believe that anything will change in SCOTUS composition. Wealth clearly protects those in power from consequences even more than at the end of the 19th century. Daily, we are confronted with evidence that great wealth allows those indicted to walk free when anyone of much less wealth would be held in custody or significant consequences. The legal system no longer reflects equality before the law. I have no faith that it will change any time soon.

  17. Cool! Let’s apply the Comstock Act to the indecent and immoral ramblings on Truth Social . . .

  18. Immediately bring back the Comstock Act.
    Ban Trump from sending his licentious Bible through the mail, or having anyone read it. We can have children (or easily excitable men like Clarence Thomas) reading a book like Genesis.
    Then they can overturn Loving v. Virginia and we can put Thomas in jail.
    Or we could expand the Court.
    Happily and sadly, I don’t see a renewed Comstock Act nor an expanded Court.

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