A high-stakes case involving access to the abortion pill mifepristone has been wending its way through the courts this year. At issue is the U.S. Food and Drug Administration's approval of the drug, one of two medications that have been prescribed together for more than two decades to end pregnancies.
In early April, Texas district judge Matthew Kacsmaryk ruled in favor of antiabortion organizations and doctors demanding the fda's approval of mifepristone be revoked. The Fifth Circuit Court of Appeals issued a partial stay of the ruling, maintaining mifepristone's approval but restricting its distribution. The U.S. Supreme Court temporarily preserved access to the drug while the case is being heard by the Fifth Circuit Court. As of this writing, the appeals court had not issued a ruling, but the case is most likely headed back to the Supreme Court.
Kacsmaryk's ruling and the initial Fifth Circuit decision cited a 19th-century law known as the Comstock Act of 1873, which made it illegal to send “obscene, lewd or lascivious” materials by mail—including information related to abortion or contraception. Although the Supreme Court greatly weakened the law in the 1960s, it quietly remained on the books until the mifepristone lawsuit revived it.
Science journalist and author Annalee Newitz spent years interviewing people about the Comstock Act and researching Comstock himself for their 2019 novel The Future of Another Timeline, in which characters time travel to try to block the original antiobscenity crusade. Scientific American spoke with Newitz about how this 150-year-old law is still being used to restrict reproductive rights.
[An edited transcript of the interview follows.]
Tell me about Anthony Comstock, for whom this law is named.
He was a very famous moral crusader based in New York [City] in the mid-19th century. Comstock was interested in stamping out obscenity—and by “obscenity,” he meant any imagery or literature that contained nudity, among other things. He was extreme for his time, but at a certain point he managed to connect with the New York City YMCA, which was also against what it was referring to as obscenity. By connecting with that organization, he got access to a lot of powerful New Yorkers who were able to fund his campaign. He got himself a position as a special inspector at the postal service. Much of the Comstock Act's power comes from the ability to regulate communications across state lines.
The law forbids the sending of obscene materials through the mail. Comstock was enforcing the law by ordering tons of items through the mail, from contraceptives and sex toys to erotic images and abortifacients [substances that end a pregnancy]. Then, after receiving the items, he would prosecute the people sending them. He was targeting people who were known to be selling the raw material but also, more important, people who were selling any kind of information that was [sex] education-related—literally things like “here's how to make a baby” and information about birth control and abortion. The Comstock Act was actually a First Amendment exemption law. It was a law about what could be said and what could be passed through the mail. Any information or material related to reproductive health or abortion or sex education was classified as obscene.
In the early 20th century playwright George Bernard Shaw wrote an op-ed in the New York Times making fun of Comstock—because by the late 19th century, even though the laws were in effect, many modern young people thought he was an idiot. Shaw said America was suffering from “Comstockery.” He was using this term to refer to the censorship and puritanical nature of American art, and it became a meme. People started using “Comstockery” to make fun of any kind of art or storytelling or writing or politics that was old-fashioned and puritanical.
How have the Comstock Act and related laws evolved over time?
The Comstock laws were being actively used basically through the 1960s, which is shocking. And in the 1970s we saw on the Supreme Court a revolution in our understanding of what obscenity is and a kind of rejiggering of the First Amendment—because, remember, obscenity is an exemption to the First Amendment.
In the early 20th century this idea of Comstockery became very popular. The laws were viewed as old-fashioned, and they weren't really taken off the books, but they were mostly ignored. And at the same time, courts were using them to continue limiting, especially, abortifacients, abortion information and reproductive health information.
In the 1930s there were some rulings around the Comstock Act that broadened its application to different kinds of birth control but at the same time limited how the law could be used if people were sending abortifacients for unlawful uses. So in the 1930s there's this limit where it counts under the Comstock Act only if you deliberately are sending somebody something to illegally abort a pregnancy. Then, in the 1950s, there was an expansion of the Comstock Act to include any substance that could lead to an abortion.
Then you get this shift in the early 1970s around privacy law, and reproductive health is placed under privacy. Pretty much every lawyer I've ever talked to about this who's superknowledgeable about reproductive rights is like, Why did we do that? That was such a precarious ruling—so easy to roll back, as we've seen with last year's Supreme Court decision overturning Roe v. Wade. But it seemed like a good idea at the time. In the process, of course, that meant these Comstock laws remained on the books in many places.
In The Future of Another Timeline, characters travel back in time to try to prevent the Comstock laws. When you wrote the book, did you expect these laws to be used in a ruling like that in the recent mifepristone case?
Definitely not. I'm probably the only person who has written a time-travel story about trying to defeat Comstock, although I'd love to be wrong about that. But there are a lot of law experts and obscenity experts whose work I've read over the years who have said the laws that protect people's rights to have an abortion and to have access to birth control are superprecarious—and what we need is a law that says abortion is legal and birth control is legal. But what we keep doing because of our Comstockery as a nation is saying, “Oh, we wouldn't want to give people rights to have an abortion. Why don't we just say that they have a right to do whatever they want in private, and then we'll just avoid talking about the issue?” And what that means is that we continue to allow women to be [treated like] second-class citizens.
How did Comstock use the courts and other means to enforce his agenda?
In the 19th century Comstock was like, “I'm going to use surveillance, and I'll use this brand-new position in the postal service to police what I call obscenity.” He also ran this organization called the New York Society for the Suppression of Vice, which just sounds like something out of a Marvel comic. And they would do these arrests all the time. So it feels very much like, yes, it comes out of using the courts. But it also comes out of abusing police power because these were people who were, like, pseudo police officers, and they would figure out who was an abortion provider.
It's all tied up with a lot of the same issues that we're grappling with nowadays: What kinds of books should we allow children to read? What should police powers be? What is the role of courts? But now that they're picking on mifepristone, I think we're going to get a really funny backlash from an unexpected source perhaps—which is the pharmaceutical industry. I think the pharmaceutical industry is saying, “This is going to go after our bottom line.”
What happened to Comstock himself?
He was basically laughed out of his positions of power. By the time he died, he was considered to be just a joke. Right after he died is when Margaret Sanger started founding her clinics, which eventually became Planned Parenthood. So even that aspect of his work was kind of crushed under the wheels of this new era of family planning.