The Comstock Act, an 1873 federal law signed by President Ulysses S. Grant, is a relic of an era when free speech, medical privacy, and other rights that modern-day Americans take for granted effectively did not exist.
Nearly every word of this law, which is named after the Gilded Age anti-sex crusader Anthony Comstock, is unconstitutional — at least under the understanding of the Constitution that prevailed for nearly all of the past 60 years. The Comstock Act purports to make it a crime to mail “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance,” or to mail any “thing” for “any indecent or immoral purpose” — vague words that inspired a century of litigation just to determine what concepts like “obscenity” actually mean.
And now, this puritanical law is back in vogue with the anti-abortion right wing.
A Trump-appointed judge who recently attempted to ban mifepristone, a drug used in more than half of all abortions in the United States, wrote an opinion that repeatedly cites a provision of the Comstock Act that also purports to ban “every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use” from being mailed.
Anthony Comstock, who died in 1915, never held high government office. The only federal office he ever held was an appointment as a postal inspector — a law enforcement position that gave him the power to enforce the law that bears his name. Yet wielding this office and using the authority given to him in his primary job as secretary of the New York Society for the Suppression of Vice (NYSSV), Comstock became the scourge of artists, authors, birth control activists, abortion providers, and pornographers.
At the height of his power, in 1883, Comstock successfully brought charges against an art gallery owner who sold high-quality reproductions of famous nude paintings — including Alexandre Cabanel’s masterpiece The Birth of Venus. A court deemed the paintings to be criminally obscene, and the art was seized.
Worse, Comstock pursued providers of abortions and birth control with a religious zeal that bordered on homicidal. In 1878, after Comstock had Madame Restell, a well-known abortion provider, arrested for the crime of selling contraceptive pills, the 67-year-old Restell died by suicide. As law professor Geoffrey Stone wrote in his 2017 book Sex and the Constitution, “Comstock later boasted that Restell was the fifteenth target of his investigation to commit suicide.”