The Comstock Law Is One of America’s Weirdest and Stupidest Laws.

The strangest thing for me about the recent mifepristone lawsuit is not that a Texas judge ordered the withholding of FDA approval for a drug that had already been approved 23 years ago, nor that a Washington judge simultaneously issued the exact opposite decision (that the FDA could not change drug availability). The strangest thing is that the Texas ruling makes it look like we’re still applying the Comstock Act, a crazy law with a long history, originally passed in 1873.

Who is Comstock?

Anthony Comstock was an activist who chaired the YMCA’s Anti-Vice Committee and he lobbied for legislation in New York and at the federal level to prohibit the mailing of “obscene” and “obscene” material.

The 1873 law that bore his name was broad, vague, and far-reaching . It stipulated that “no obscene, obscene or lustful book, pamphlet, picture, newspaper, printed or other publication of an obscene nature, or any article or thing intended or intended to prevent conception or abortion, or any article or thing intended or adapted for any obscene or immoral use or character, nor any written or printed postcard, prospectus, book, brochure, advertisement or notice of any kind giving information, directly or indirectly, where, how or about whom, or by what means can be obtained or made any of the foregoing, and no letter on whose envelope or postcard on which obscene or obscene epithets may be written or printed shall be carried by post.” fines and prison terms for anyone who mails, publishes or advertises such things.

The Post made him a “special agent” authorized to carry weapons and conduct raids. For federal law, he needed to prove that obscene material was sent or advertised by mail, but he also had the power to enforce other obscenity laws that did not require the use of the mail service. The New York Act of 1868 gave him a share of any fines he could collect.

Comstock didn’t just wait for reports of “obscene” material being sent out, he personally ordered contraceptives and books on forbidden subjects under false names, and then arrested authors and publishers. Comstock reportedly held himself responsible for 4,000 arrests and 15 people driven to suicide.

The Comstock Act censored books and magazines for almost a century.

While the recent court decision concerns abortion pills, the act has also been used to censor virtually the entire publishing industry in the United States on a large scale.

Anatomy books? Obscene. Books on reproductive health? Also obscene. Classical literature, including Lysistratus and The Canterbury Tales, was also considered obscene and charges were brought against publishers.

And it wasn’t slapping fines; all print runs will be destroyed and publishers will be sentenced to prison. According to Time magazine , here’s how the Ulysses case went:

In 1918, Ezra Pound sent part of it to Margaret Anderson, who published it in her Little Review. The US Post Office confiscated and burned all copies mailed.

And the obscene material wasn’t just about sex; the definition was broad from the start and expanded over time. The 1908 addition included arson and murder among the topics considered indecent.

Or take Cupid’s Yoke , a pamphlet that argues that people should partner with those they love instead of being locked into economically and sexually exploitative marriages. The author managed to obtain a presidential pardon, but the publishing house, which republished it a year later, was accused of destroying the “moral, physical and spiritual life of youth” and served a prison sentence.

Court cases have narrowed the scope of the Comstock laws over the years because they clearly violate our First Amendment rights. But it happened very, very slowly. For example, it wasn’t until 1958 that the Supreme Court ruled that a magazine was not automatically obscene just because it was published for gay readers .

Birth control and abortion

An 1873 law, enacted in its entirety 100 years before Roe v. Wade , prohibited the mailing of “any article or article designed or designed to prevent conception or produce an abortion.” Surgical supplies that could theoretically be used for an abortion? A booklet on how to use the rhythm method? Such things were outlawed, along with their advertisements and letters describing where to find them and how to use them.

In 1936, the US government sued a box of diaphragms (because that’s the way these kinds of lawsuits work) in a case that was actually brought by Margaret Sanger of the well-known organization Planned Parenthood. A case known as “United States v. One Package” involving more or less than 120 rubber pessaries to prevent conception found that the Comstock Act did not cover materials that are used for legitimate purposes. Physicians could prescribe diaphragms to, say, women who they think would be healthier if they delayed pregnancy.

It wasn’t until 1965 that Griswold v. Connecticut established the right of married couples to use contraceptives if they wanted to. In 1972, this idea was extended to unmarried people on the grounds that “it is the right of the individual, whether married or single, to be free from unwarranted state interference in matters so fundamentally affecting the individual as the decision whether to bear or conceive a child.” “. child.”

But last week a Texas judge decided none of that mattered; the 1873 law says you can’t mail abortion pills, and therefore that means you can’t mail abortion pills. Never mind that this law was not considered constitutional or enforceable for decades .