What a Turn-of-the-Century Anti-Abortion and Contraception Crusader Reveals About GOP Efforts to Ban Abortion Pills in the Mail
Although his name may not be familiar to most Americans, for 40 years, between 1873 and 1915, the minced mutton and angelic face Anthony Comstock was one of the most powerful and feared people in American society. The most famous moral reformer of the Gilded Age, Comstock was the founder of the New York Society for the Suppression of Vice and a U.S. Postal Special Agent who mounted a national crusade to suppress the circulation of everything personally found to be morally objectionable. He often claimed that he was simply doing God’s will in a continuing war against sin.
Using an 1873 federal law he drafted (the “Comstock Act”), he used his authority to seize objectionable material and prosecute people for transmitting “obscene” articles through the US mail. Comstock went after lottery subscriptions, pornography, pulp fiction magazines and even tracts advocating religion free thought.
Comstock’s “passion” (pun intended), however, was sex. Of all the forms of vice he deplored and persecuted, no cause was greater to him than the suppression of materials advocating free love, abortion, and contraceptives. One of his most famous victims was Walt Whitman, whom he sued for publishing Blades of grass. Although Comstock prosecuted abortion providers and distributors of contraceptives, it also prosecuted those who simply provided medical information regarding abortion and contraceptives; he even attacked the authors of medical journals and books that provided gynecological advice.
Comstock proudly stated that during his crusade he secured the conviction of some 2,600 people for facilitating access to abortion and contraceptives, as well as providing obscene material. (He even bragged about being responsible for about 15 suicides of people he investigated.) Margaret Sanger, the founder of Planned Parenthood, had to flee the country to avoid prosecution under the Comstock Act ( although her husband, William Sanger, unfortunately served a prison sentence for publishing his pamphlet on birth control Family restriction).
Readers can probably anticipate where this history lesson is going. Since Supreme Court decision to strike down the right to abortion guaranteed in Roe vs. Wade and Casey Against Planned Parenthoodthe red states rushed to criminalize most, if not all, access to abortion. At least 14 states have banned (or are in the process of banning) mifepristone, the abortion pill, and prevent women from receiving it in the mail from blue states or overseas. (Many of those same states seek to prevent their residents from traveling to blue states to get abortions or get prescriptions.)
A group that is likely to be targeted, Access to aid, is a Netherlands-based international telemedicine abortion provider that uses European doctors to consult and prescribe the abortion pill (for the record, the Food and Drug Administration has approved the use of mifepristone in the United States up to the 10th week of pregnancy). The abortion pill has become increasingly common in the United States, with its use accounting for more than 50% of all abortions in 2020, according to the Guttmacher Institute.
Both red state efforts — banning interstate travel and preventing the shipment of abortion pills — are running into obstacles. Although the Supreme Court has recognized that there is a constitutionally protected right to travel from one state to another, this right, like the right to privacy, is not enumerated in the Constitution (so it could also be revoked by conservative judges). But generally, a state cannot prevent its citizens from traveling to another state to receive benefits and services there.
When it comes to mailing abortion pills (or birth control, for that matter), mail delivery is under the control of the federal government, not the states (thus, the WE Mail). Government officials have no inherent authority to inspect mail or its contents. Buying and shipping goods through the mail is also a form of interstate commerce, which is regulated by the federal government, not the states.
But Congress can consent to states exercising some regulatory authority over commerce, and all it would take is a Republican-controlled Congress to allow red states to ban the shipment of certain items. within their borders (as is the case already the case at the federal level with lottery tickets). A Republican-controlled Congress could then impose a nationwide ban on shipping abortion pills or certain contraceptives. (Republican-controlled state legislatures have already demonstrated their willingness to enact questionable legislation for nothing more than its intimidation factor.)
Which brings us back to Anthony Comstock. In 1878, the Supreme Court upheld a law prohibiting the mailing of lottery tickets—and by implication the Comstock law itself—with the opinion stating that:
“[t]he power held by Congress encompasses the regulation of the entire postal system in the country. The right to designate what must be transported necessarily implies the right to determine what must be excluded”. (Ex parte Jackson, 1878)
The point being that there is precedent for a national ban today. And Comstock’s questionable investigative methods should also serve as a lesson. Comstock bragged about tricking those providing birth control and abortion information into writing them letters posing as a woman in distress, only to have the providers arrested once he received the material objectionable.
Similarly, lawmakers in red states can ban certain items once they’ve been received in their state, and then can seek vendor extradition or get warrants for their arrest if they ever set foot. in their state. Regardless of how successful this may be, the specter of lawsuits or its uncertainties will certainly have a chilling effect.
Throughout his career, Comstock relished his fame as a moral crusader who did God’s will to eradicate vice and sexual impropriety. For him, abortion and contraceptives were immoral primarily because they facilitated unrestricted sexual activity. He would undoubtedly agree with today’s toughest anti-abortion legislation and would be happy that his legacy was likely to live on in the wake of the Dobbs decision. Wherever he is, he must smile.