The Washington PostDemocracy Dies in Darkness

The original Comstock Act doesn’t support the new antiabortion decision

Judge Matthew Kacsmaryk rationalized his medication abortion opinion through a distorted reading of the long-dormant 1873 law

Perspective by
Lauren MacIvor Thompson is a historian of early-20th-century women’s rights, medicine, law and public health. She is an assistant professor of history and interdisciplinary studies at Kennesaw State University and serves as the faculty fellow at the Georgia State University College of Law’s Center for Law, Health & Society.
April 12, 2023 at 6:00 a.m. EDT
Matthew Kacsmaryk in 2017 answers questions during a Senate hearing on his nomination to be a U.S. district judge. (Pool/Reuters)
8 min

In an unprecedented decision, conservative U.S. District Judge Matthew Kacsmaryk suspended the Food and Drug Administration’s approval of mifepristone, one of two drugs used in medication abortions. The FDA approved mifepristone in 2000, and it has since been widely used in miscarriage and abortion care with an excellent track record of safety and efficacy.

Yet, in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which revoked the constitutional right to an abortion, the availability of medication abortion has become a major battleground, with antiabortion groups pushing to eliminate it by any means possible.

The immediate impact of Kacsmaryk’s ruling is unclear. The Department of Justice has already appealed to the U.S. Court of Appeals for the 5th Circuit, and — adding confusion — within hours of Kacsmaryk’s decision, District Judge Thomas O. Rice issued his own opinion in a separate case requiring the FDA to maintain the status quo with mifepristone in 17 states and the District of Columbia.

Yet, if implemented, Kacsmaryk’s decision will have massive ramifications — throwing the future of medication abortion in doubt and complicating miscarriage care, which threatens reproductive health and autonomy.

Kacsmaryk rationalized his opinion through a distorted reading of the long-dormant 1873 Comstock Law, which dealt with the mailing of pornography, obscene literature, contraceptives and abortifacients. While the judge found this law “straightforward” and said that it “plainly forecloses mail-order abortion in the present,” he got the intent of the drafters of the legislation wrong, as well as the legal history of its enforcement.

America in the 1870s was a society obsessed with sexual morality. After the Civil War, some abolitionists turned their attention to ridding the country of vice. Temperance campaigns and anti-prostitution efforts dominated newspaper headlines and the work of charity organizations.

Anthony Comstock, a former Union soldier, became one of the most prominent players in this movement, with his zealous anti-obscenity work. Obsessed with rooting out pornography and sexual material, he began his career in New York where he founded the New York Society for the Suppression of Vice, personally leading surprise raids on bars, saloons, sex shops and houses of prostitution. He also went after newspaper editors and pamphlet authors whom he deemed immoral, including suffragist Victoria Woodhull.

Backed by wealthy donors, Comstock took his impressive collection of pornographic pictures, sex toys and contraceptive materials to Washington, D.C., where he displayed them at the Capitol to help galvanize Congress to pass anti-obscenity legislation.

In March 1873, Congress responded by passing an “Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of immoral Use” — popularly known as the Comstock Act. The law made it illegal to send anything considered “obscene, lewd, or lascivious” through the U.S. Postal Service. Included among the list of “nonmailable” items: every “article, instrument, substance, drug, medicine, or thing designed, adapted, or intended for producing abortion.”

States soon followed by passing their own “mini-Comstock” laws, which they layered onto existing antiabortion and anti-contraceptive laws that they had enacted beginning in the 1840s. This phalanx of laws meant that for decades, the Postal Service hired postal inspectors to spy on private citizens’ mail to catch them sending anything deemed immoral by the act — including private discussions about birth control or abortion in personal letters. It was a massive invasion of privacy. Punishments could include prison time, large fines or even hard labor.

What few realize is that the initial draft of the Comstock Act contained an exception for physicians. While the Senate Committee on Post Office and Post Roads was drafting the bill, Sen. George Edmunds (R-Vt.) added an amendment stating that it prohibited “any article or medicine for the prevention of conception, or for causing abortion, except on a prescription of a physician in good standing, given in good faith.” Upon seeing the new version of the law, Comstock was appalled, writing in his diary that Edmunds probably had doctor friends “in the business” that he was trying to shield.

Yet, during floor debate over the bill, Sen. William Alfred Buckingham (R-Conn.) proposed replacing the physician exception — “line 13.” It is not clear why he did so although some historians have speculated that it might have had to do with a political rivalry between Buckingham and Edmunds, or perhaps he was persuaded by Comstock himself. Buckingham’s amendment to the amendment struck out the phrasing beginning with “except” and the final bill read: “any article whatever, for the prevention of conception, or for causing unlawful abortion, or shall advertise the same …”

Buckingham’s proposal sparked some misgivings. Sen. Hannibal Hamlin (R-Maine) wondered whether one senator “tinkering” with the bill would create problems, urging his colleagues instead to adopt the legislation as written by the committee. Sen. Roscoe Conkling (R-N.Y.) also spoke up, complaining that he didn’t know why Buckingham needed to make the substitution and warning that the Senate’s haste to pass the act might lead to unexpected consequences. Nonetheless, after their objections, the debate petered out. Even Conkling concluded that “the bill had better be printed as it stands” so the Senate could vote on it the next morning.

Without further ado, the bill moved to the House, where Rep. Clinton Merriam (R-N.Y.) made a motion to vote on it immediately with no debate. Only Rep. Michael Kerr (D-Ind.) briefly raised an objection that they were passing the bill in “hot haste.” But after Speaker James G. Blaine (R- Maine) overruled him, the House passed the bill. President Ulysses S. Grant signed the Comstock Act into law on March 3, 1873.

Had the physician exemption remained, rather than getting cut by what the legislative history indicates was a bored and recalcitrant Congress that gave little thought to the issue, the implications would have been enormous.

Americans immediately made clear their hatred of the new law. In 1878, the National Liberal League, a group that advocated religious freedom and separation of church and state, presented Congress with a petition signed by 50,000 citizens demanding its repeal. Cartoonists and satirists lampooned Comstock for his pious moralizing, while public intellectuals denounced his legal regime that arrested thousands of ordinary people.

Federal judges began chipping away at the law — including carving out the medical exceptions originally intended by Edmunds. In 1936, the U.S. Court of Appeals for the 2nd Circuit decided one of the most consequential cases in this area: United States v. One Package of Japanese Pessaries.

In One Package, the court affirmed that physicians had the right to prescribe contraception and import devices for medical research to use them “for the health of their patients.” Judge Augustus N. Hand’s opinion even commented that the Comstock Act’s design was not to prevent “the importation, sale, or carriage by mail of things which might be intelligently employed by conscientious and competent physicians for the purpose of saving lives or promoting the well-being of their patients.” Crucially, Hand’s justification for this claim included the exception in the original version of the Comstock law.

By 1965, the Supreme Court struck down Connecticut’s “mini-Comstock” law in Griswold v. Connecticut, which recognized the privacy rights of married couples to use birth control. By extension, the decision also rendered the federal law’s provisions on contraception illegal.

But other portions of the Act remained technically on the books, though unenforced, including the antiabortion provisions. Although women’s rights and abortion rights activists have raised the alarm numerous times over Congress not repealing the law, until recently it merely seemed to be a distant vestige of another age, one alien to our own understanding of First Amendment rights and privacy.

But Kacsmaryk has seemingly resurrected the Comstock Law with potentially seismic impact. Not only does the ruling threaten access to abortion, but it puts at risk the FDA’s drug approval process more broadly. Additionally, as Rep. Nancy Mace (R-S.C.) pointed out on Monday, it will keep women having miscarriages from receiving necessary medical care that can prevent catastrophic health consequences like sepsis.

And here’s the thing: History shows that Kacsmaryk distorted the law’s original intent and the case law that governed it while it was enforced. Physicians eventually did retain the right to prescribe contraceptive medication to their patients even while Comstock laws remained in force. The original intent of the bill even noted that abortions were within the realm of doctors’ rights to do what was best for their patients. The Texas mifepristone opinion is no “straightforward” reading of the Comstock Act as Kacsmaryk claimed. Instead, its misreadings threaten anew all Americans’ rights to medical care and privacy.