Justice  /  Comment

Conservatives Are Turning to a 150-Year-Old Obscenity Law to Outlaw Abortion

With the Comstock Act of 1873 coming back to life, reproductive care, LGBTQ protections, and a host of other civil rights are now at risk.

This misremembering of Comstock as a singularly powerful scold may go to explain why today the Comstock Act is sometimes incorrectly presumed a dead letter—an unenforced, forgotten law—or how it is inaccurately characterized as having been overturned by twentieth-century Supreme Court decisions. The Comstock Act’s ongoing relevance just doesn’t square with notions of “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,” as one New York Times opinion columnist summarized the conventional liberal view of the present day, as if twentieth-century progress on civil rights and reproductive rights carried its own momentum against outmoded nineteenth-century norms, gains stacking up only in one direction. Recent events in the judiciary have only underscored, however, that our courts are not vehicles of ever-forward social progress. Instead, they are more governed by those old norms (for example, that rich white men continue to have outsize, unaccountable influence) than even some reproductive rights defenders have accepted.

When the Supreme Court overturned Roe v. Wade in 2022, what followed was a bit of a legal scramble, with people who need abortions and people who provide them thrust into uncertain terrain. Many were unsure if they were now engaging in criminal conduct for seeking and giving care during pregnancy, even for those who didn’t want to end their pregnancy. Fueling this struggle was the legacy of reproductive rights groups’ misplaced trust in the law. While they were focused on preserving legal access to abortion through the courts, presuming the rule of law meant something, nowhere near that level of attention and resources went to addressing all of the ways that pregnancy and abortion were already criminalized—such that, when something like the Comstock Act comes back into play, they are left playing catch-up.

Even those versed in the history of the Comstock Act, myself included, perhaps underestimated the role it would play in a post-Roe world. It looked like Comstock was a tool for policing the dissemination of abortion information online, owing to an update Congress passed in 1996, expanding Comstock’s original site of censorship, the U.S. mail, to the internet. That is still a risk. But now the Comstock Act may be deployed as it was in 1873: to criminalize the use of the postal service to send pills that could cause abortion.