Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It
abstract. With the overturning of Roe v. Wade, the antiabortion movement has focused on a new strategy: transforming the Comstock Act, a postal obscenity statute enacted in 1873, into a categorical ban on abortion—a ban that Americans never enacted and, as the movement recognizes, would never embrace today. Claims on the Comstock Act have been asserted in ongoing challenges to the approval of the abortion pill mifepristone, in litigation before the Supreme Court, and in the 2024 campaign for the presidency. This Article offers the first legal history of the Comstock Act that reaches from its enactment to its post-Dobbs reinvention.
Revivalists read the Comstock statute as a plain-meaning, no-exceptions, nationwide abortion ban. In countering revivalist claims, this Article recovers a lost constitutional history of the statute that explains why its understanding of obscenity and of items prohibited as nonmailable has evolved so dramatically in the 150 years since the law was enacted. We show that the Comstock law was the first federal obscenity law to include writings and articles enabling contraception and abortion, condemning them along with erotica and sex toys as stimulants to illicit sex. At no point was this ban absolute. The law, by its terms and as enforced, policed obscenity rather than criminalizing health care. Even the judges who developed the most expansive Victorian interpretation of obscenity—authorizing censors to prosecute advocates for free love and voluntary motherhood—protected the doctor-patient relationship. The public’s repudiation of this expansive approach to obscenity as “Comstockery”—as encroaching on democracy, liberty, and equality—led to the statute’s declining enforcement and to cases in the 1930s narrowing obscenity and expanding access to sexual education, contraception, and abortion.
These developments were not only statutory; they were constitutional. From conflicts over Comstock’s enforcement emerged popular claims on democracy, liberty, and equality in which we can recognize roots of modern free-speech law and the law of sexual and reproductive liberty lost to constitutional memory. Recovering this lost history changes our understanding of the nation’s history and traditions of sexual and reproductive freedom.
authors. Reva B. Siegel is Nicholas deB. Katzenbach Professor of Law, Yale Law School. Mary Ziegler is Martin Luther King Jr. Professor of Law, U.C. Davis School of Law. This draft benefited from dialogue with readers including Josh Chafetz; David Cohen; Nancy Cott; Scott Cummings; Michael Dorf; Greer Donley; Cary Franklin; Tara Grove; Abbe Gluck; Linda Greenhouse; Jessie Hill; Marty Lederman; Danny Li; Serena Mayeri; Laura Portuondo; Andy Pincus; Rachel Rebouché; Kevin Tobia; Katharine Young; Alexander Zhang; and participants in the N.Y.U. School of Law Legal History Colloquium, the RR/RJ Roundtable, and the U.C. Berkeley Faculty Workshop. We are particularly grateful to the Boston University Law Review Online for hosting a symposium on Comstockery and to the participating scholars for their essays exploring questions of constitutional law and politics the Article presents. For outstanding research assistance, we thank Hannah Berkman, Caitlyn Jordan, Katie Kroft, Dima Balut, Griffin Black, Gregory Briker, Lyle Cherneff, Elena Cullen, Jun Luke Foster, Gila Glattstein, Lauren Haumesser, Remington Hill, Alex Johnson, Katrina Kim, Emma LeBlanc, Inbar Pe’er, Marlen Renderos, Sarah Shapiro, and Elena Sokoloski. We are indebted to our wonderful librarians Julie Krishnaswami and Kristin Brandt.
Introduction
In Dobbs v. Jackson Women’s Health Organization, the Court reversed Roe v. Wade, objecting that “a right to abortion [was] not deeply rooted in the Nation’s history and traditions” of criminalizing abortion, a tradition that began in the late nineteenth century and persisted until the time of Roe.1 But Dobbs was silent about another body of law that banned access to abortion and contraception in this same era. The Comstock Act, enacted in 1873, criminalized “obscene Literature and Articles of immoral Use” in the U.S. mails, including “any article or thing designed or intended for the prevention of conception or procuring of abortion.”2
Comstock “revivalists”
now seek to reinvent the Comstock statute, misreading the 1873 obscenity law as
an absolute ban on abortion. But Americans never enacted such an abortion ban,
and, as revivalists recognize, Americans would never enact one
today.3
Comstock’s present-day champions claim to have discovered a statutory text
whose meaning is plain and can be applied to ban shipment of abortion-related
materials without exception—a claim asserted at the Supreme Court in FDA v.
Alliance for Hippocratic Medicine,4
in a related complaint filed before the election,5
in Donald Trump’s 2024 presidential campaign,6 and in Project 2025, a high-profile transition plan for the next
Republican president.7 Comstock revivalists who insist the statute’s meaning is plain and
absolute are calling for enforcement of the statute in ways that—as we complete
this Article the week of Donald Trump’s election—the statute has never been
enforced.8 Like so many revivalists, they invoke the
authority of a past they are inventing. Faced with repeated claims that a
nineteenth-century obscenity law is a twenty-first-century abortion ban,
Americans have begun to mobilize for the Comstock Act’s repeal.9
In responding to revivalist claims, this Article offers a wide-ranging history of the Comstock Act, demonstrating how Americans debated the law’s meaning from the time of its enactment in the aftermath of the Civil War until the mid-twentieth century. This history of the statute at one and the same time shows how Comstock conflict played an important role in the development of modern constitutional understandings of free speech and sexual and reproductive freedom.
We analyze the Comstock Act as its contemporaries understood it—as an obscenity law—and illustrate how and why understandings of obscenity changed after the law’s enactment. The 1873 postal statute was the first federal obscenity law to include writings and articles that facilitated contraception and abortion.10 Its coverage was never absolute: those who drafted and enforced the law understood it to prohibit obscenity, not health care, a distinction that evolved over time.11 In the late nineteenth century, Americans promoting what they called sexual purity seized upon the newly enacted postal statute and used it to prevent nonprocreative sex outside and inside of marriage.12 Antivice advocates and postal inspectors prosecuted Americans who sought birth control, abortion, or information about either, targeting in particular those who called for free speech, voluntary motherhood, and the statute’s reform or repeal.13 These Victorian obscenity prosecutions earned the name “Comstockery” and aroused generations of resistance—by free lovers, suffragists, civil libertarians, and ultimately ordinary Americans who over time helped shift understandings of the obscenity that the law prohibited and the health care that it protected.14 Resistance to Comstockery gave birth to modern understandings of democracy, free speech, and sexual and reproductive freedom—understandings that emerged first under the statute in the 1930s and then, decades later, under the Constitution.15
The history this Article excavates is of both statutory and constitutional significance. It enables evaluation of the statutory claims of Comstock revivalists. Yet, as the Article reconstructs generations of American struggle over Comstock’s enforcement, it excavates a long-running national conversation about the government’s prerogatives to use criminal law to control Americans’ decision-making about sex, reproduction, and access to health care that a reader of the Dobbs decision would never know had occurred. As the Article reconstructs this conversation, it recovers the lost democratic roots of constitutional decisions that Dobbs threatened as contrary to the nation’s history and traditions.16 By including the Comstock laws in our telling of the nation’s past and by examining the statutes with attention to the views of their proponents and disenfranchised critics, we diverge from Dobbs in both substance and method, producing a very different account of the nation’s past than Dobbs did. If the past is to guide constitutional interpretation as Dobbs urges, it is critical to ask not only why, but also, as this Article explores, whose voices are included in an account of the past that is to guide constitutional interpretation today.17
There is a
significant body of scholarship on the Comstock statute—written primarily
outside of law and before the Dobbs
decision—on which we have drawn in an effort to make
sense of claims about the statute.18 But there is remarkably little legal scholarship examining enforcement
of Comstock’s provisions criminalizing writings and articles “for the
prevention of conception or procuring of abortion.” Legal scholarship on
Comstock’s obscenity provisions barely addresses cases on contraception and
abortion.19
And cases conferring constitutional rights to make decisions concerning
contraception and abortion scarcely mention Comstock.20
Our account provides a variety of historical resources for interested Americans—scholars, judges, legislators, government officials, and citizens, including but not limited to textualists—to analyze Comstock’s text, first, as enacted and, then, as judicially interpreted over time.21 This account makes clear that, contrary to revivalists’ claims, the meaning of Comstock’s abortion provisions, which refer to “unlawful abortion” and “procuring of abortion,” has never been “plain” or absolute.22 As we show, the text of the statute as enacted and as codified today contains no categorical ban on mailing materials for terminating pregnancy. At the time of enactment, “procuring of abortion” was a crime: an allegation of unlawful intent could make terminating pregnancy a crime, but not if undertaken to save a life—a question that doctors had discretion to determine.23 The statute’s postal provisions had two scienter requirements: requiring that a sender (1) knowingly mail items with (2) the awareness that they would be used unlawfully.24 (These two scienter requirements remain in the text of the statute as amended and currently codified.25) Even at the height of a sexual-purity regime, courts reasoned that the Comstock Act’s obscenity provisions did not apply to the doctor-patient relationship,26 and the kinds of exempted health-related mailings evolved over the life of the statute.27
What, then, did postal inspectors and judges understand to be obscene under the statute? As we show, the answer changed dramatically over time. The Comstock Act confronted Americans with the question whether the federal government could use the criminal law to control the speech and intimate life of its citizens. As we show, their changing beliefs about this question shaped the interpretation and enforcement of the statute and, ultimately, the Constitution.
The Comstock Act destabilized understandings of obscenity by including some writings and paraphernalia related to birth control and abortion amidst prohibited erotica.28 Enacted at a time of plummeting birth rates,29 surging immigration,30 and a growing movement for woman suffrage,31 the postal censorship law inserted the federal government into Americans’ sexual and reproductive lives in unprecedented ways, but its scope remained unclear even to the lawmakers who passed it. The Comstock law’s convoluted and moralizing text32 provided flexible authority for postal inspectors, antivice societies, and courts to develop and impose new understandings of sexual purity.33 Censors enforcing the law created an unprecedented and remarkably invasive criminal-law regime for surveilling the U.S. mails—then the primary infrastructure for commerce, politics, and communications in American life.34
Over the decades, there were divergent mobilizations for reforming the statute. In the first decades after its enactment, a sexual-purity movement sought to persuade the government to adopt its understanding of the law and enforce it to ban an expanding array of communications and things associated with sex, contraception, and abortion—and to target for prosecution those who advocated freedom of expression or called for the statute’s repeal.35 By the early decades of the twentieth century, woman suffragists and other opponents of the Comstock Act began conscientiously to court arrest, and growing numbers of Americans across the nation came vocally to oppose the government’s increasingly extreme interpretations of obscenity.36 In the 1930s, federal courts began to read the law with attention to its double scienter requirement and characterized more communications and things as legitimate forms of health care exempt from criminalization under the statute. These included not only exchanges between doctors and patients or books about sex education but also condoms and diaphragms, all of which might be integral to Americans’ health.37 By distinguishing obscenity from health, judges adopted a fair reading of the statute’s language that responded to decades of judicial discussion, as well as to popular resistance that enforcers of the statute had tried to censor.38 There was consensus from the beginning that health was excepted from the statute’s ban on obscenity, yet courts’ understandings of the distinction between obscenity and health evolved with the American public’s understanding of democracy, freedom, family, and the Constitution. The history of Comstock enforcement thus unearths the lost popular roots of modern First Amendment and sexual- and reproductive-liberties law.39
In important respects, then, the history of the Comstock Act is a story of bottom-up change. But, as importantly, the history of the Comstock Act we recount is a story of a statute entrenched against change by profoundly antidemocratic forces. Federal and state obscenity laws were enacted and then preserved on the books by forms of government action that today we would view as unquestionably unconstitutional—criminal prosecutions under federal and state obscenity laws persisting until the 1960s that stigmatized certain forms of political speech, intimate behavior, and reproductive decision-making as obscene: dirty, immoral, or unworthy.40
As we show, women’s political marginalization and the
Comstock law’s stigmatization of speech about sex and reproduction interacted
over the decades and together helped prevent the law’s reform or repeal.41 The Comstock
Act was enacted in an era when women were barred from participating in the law’s
adoption, interpretation, and enforcement, and they had scant opportunity to do
so well into the twentieth
century.42 And the Act
was enforced to insulate the law from criticism. Advocates for free love or
voluntary motherhood who spoke out against coerced sex, coerced motherhood, or
the inequalities of marriage were targeted for criminal prosecution under the
new obscenity statute, as were civil libertarians who criticized censors’
efforts to suppress political speech and crush the movement for the statute’s
reform or repeal.43
These effects were not incidental. The goal of chilling political speech about intimate life motivated Anthony Comstock and the patrons with whom he worked to enact the law.44 The drive to pass the statute began when Comstock sought to censor Victoria Woodhull—a prominent advocate for woman suffrage and free love, a successful stockbroker, and the first woman to declare her candidacy for the presidency—because she had objected to the sexual double standard, complaining of a prominent minister’s sexual infidelities that would not have been tolerated in a woman.45 It was Woodhull’s 1873 acquittal under then-existing federal obscenity law that led Comstock and his allies to advocate that Congress adopt a new, more expansive obscenity law.46
As Woodhull’s prosecution prefigured, antivice activists targeted those who dared speak out against laws enforcing women’s inequality in private and public life for criminal prosecution—chilling political speech about intimate relations for generations after. Describing this “chilling effect,” the Supreme Court has recently explained that “[p]rohibitions on speech have the potential to chill, or deter, speech outside their boundaries.”47 We employ the First Amendment concept of chill to emphasize that enforcement of the federal obscenity law—and of the state laws that copied the federal Comstock statute48—often involved state action threatening speech that today would be constitutionally protected expression.49 As importantly, generations of prosecutions stigmatized political speech about sex and reproduction in ways that radiated far beyond the original prosecutions and helped insulate the Comstock law against legislative change.50
As one uncovers the generations of state action that helped keep Comstock on the books—state action we would view as unquestionably unconstitutional today—the antidemocratic character of the movement to revive enforcement of the Comstock Act today comes more fully into view. Revivalists cherry-pick words from the 150-year-old obscenity statute, reading the law as it was never understood and as Americans today would never enact: as a nationwide, no-exceptions abortion ban.51Remains of a law enacted, enforced, and preserved by unconstitutional means are twisted to impose on the American people Comstockery anew: a regime that would criminalize access to health in ways the American people have long opposed.
Like the 2022 Office of Legal Counsel (OLC) memo on the Comstock Act’s application to abortion, on which the federal government relied in the Alliance litigation,52 this Article rejects the revivalist claim that Comstock’s ban on mailing abortion-related materials is plain and absolute. OLC explained that to prove a violation of the Comstock Act, the government must show that a sender intended that the recipient of abortion-related items would use them unlawfully—following 1930s federal decisions which Congress was aware of when it codified the statute in 1948,53 and which, OLC concluded, “Congress ratified and USPS itself accepted.”54
This Article rejects the claim that the Comstock Act is a no-exceptions national abortion ban on textual grounds;55 and it provides wide-ranging textual, doctrinal, historical, and constitutional support for the authority of the 1930s cases, which, it shows, government officials have looked to for guidance in interpreting the statute from the 1930s until the time of this writing.56 Unlike the 2022 OLC memo, which suggests that courts adopted an interpretation of the statute that was “narrower than a literal reading might suggest,” the Article shows that the 1930s cases provided an authoritative reading of the statute that “narrow[ed]” prior case law—not the statute itself.57 Nor does the Article depend on congressional ratification to establish the authority of the 1930s decisions. The Article shows that the statute’s text, and a rich body of historical evidence in the period before as well as after the 1930s cases, supports the reasoning of the 1930s cases, which in the last century have guided the decisions of not only Congress and the U.S. Postal Service, but also the Justices of the Supreme Court.58 The judges in the 1930s cases were direct witnesses to the Comstock prosecutions that deformed democratic processes that might otherwise have enabled repeal or amendment of the law. Far from “narrowing” the statute, the 1930s cases reasoned about the role and reach of obscenity law in ways that coordinated fidelity to the statute and, implicitly, to the Constitution,59 in cases decided just years before the Supreme Court’s decision in Carolene Products.60
The Article unfolds in four Parts. Part I recounts the drive by Comstock and a small group of elite patrons that culminated in passage of the Comstock Act. After examining the statute’s provisions, Part I then shows how an antivice movement mobilized after the statute’s passage and promoted a vision of the new obscenity law as a sexual-purity mandate. We show that even at the height of a Victorian interpretation of the statute, courts distinguished health from obscenity.
Part II traces the emergence of organized resistance to the government’s use of the criminal law to enforce sexual purity and to target the law’s critics. It demonstrates the public’s growing support for the new conceptions of constitutional democracy espoused by the feminist movement, civil libertarians, and other critics of Comstockery. And it shows how Comstock critics persuaded judges in the 1930s to define obscenity in terms that recognized the prerogatives of not only doctors but also citizens to make decisions about their sexual and reproductive health.
Part III considers how Comstock conflict shaped interpretations of the statute and the Constitution. While critics were able to persuade courts to repudiate Victorian interpretations of the postal obscenity statute, they could not persuade legislators to reform or repeal the statute itself. We show that the movement was impeded not only by the persistence of women’s political marginalization, but also by the stigmatization of sexual and reproductive rights. Part III illustrates how generations of government action criminalizing speech about sex and reproduction deformed democratic politics and inhibited legislators from responding to demands for obscenity-law reforms that the public supported by wide margins. Finally, Part III connects statutory and constitutional history, demonstrating that the nation’s experience living under Comstock censorship supplied the foundation for landmark First Amendment and substantive-due-process precedents in the latter half of the twentieth century.
Part IV explores why the Comstock Act has emerged from obscurity as the cornerstone of the post-Dobbs antiabortion strategy. It shows how revivalists have embraced an edited version of the obscenity statute as the abortion ban they cannot persuade the nation to enact and how their claims diverge from the historical record.
The Conclusion identifies a series of democracy problems in reinventing the Comstock Act as a plain-meaning, no-exceptions, nationwide abortion ban. And it suggests how the Article’s inquiry into the enactment and enforcement of the Comstock Act uncovers lost foundations of free-speech and sexual- and reproductive-liberties law—expanding evidence of the nation’s history and traditions in ways that are of constitutional as well as statutory consequence today.
Act of Mar. 3, 1873, ch. 258, § 2, 17 Stat. 598, 598-99. The law’s original text included communications and articles concerning contraception and abortion in its prohibition of obscenity in publications, mailing, and importation. See infra text accompanying notes 133-136. The statute as amended over the years is codified at 18 U.S.C. §§ 1461-1462 (2018) and 19 U.S.C. § 1305 (2018); its current provisions generally include, in various formulations, items designed, adapted, or intended for “producing abortion” among the law’s long list of communications and items deemed indecent, immoral, or obscene. See 18 U.S.C. § 1461 (2018). States soon adopted similar provisions. See Mary Ware Dennett, Birth Control Laws: Shall We Keep Them Change Them or Abolish Them 268-70, 282-83 (1926) (containing appendices with state laws); Martha J. Bailey, “Momma’s Got the Pill”: How Anthony Comstock and Griswold v. Connecticut Shaped U.S. Childbearing 7-11 (Nat’l Bureau of Econ. Rsch., Working Paper No. 14675, 2009), https://www.nber.org/system/files/working_papers/w14675/w14675.pdf [https://perma.cc/7ME5-DPQQ] (describing variation among state laws); Carol Flora Brooks, The Early History of the Anti-Contraceptive Laws in Massachusetts and Connecticut, 18 Am. Q. 3, 3-4 (1966) (describing anticontraceptive laws in forty-six states).
After Dobbs, polls have consistently shown high levels of support for abortion rights. See Public Opinion on Abortion, Pew Rsch. Ctr. (May 13, 2024), https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion [https://perma.cc/2RXE-QY89] (showing that in 2024, sixty-three percent of Americans said that “abortion should be legal in all or most cases,” the highest this proportion has been since 1995); Julie Wernau, Support for Abortion Access Is Near Record, WSJ-NORC Poll Finds, Wall St. J. (Nov. 20, 2023, 9:00 AM EST), https://www.wsj.com/politics/policy/support-for-abortion-access-is-near-record-wsj-norc-poll-finds-6021c712 [https://perma.cc/22KU-YCQV]. Voters faced with ballot initiatives to expand reproductive liberties since Dobbs have chosen to do so on all seven occasions they were given the opportunity before the 2024 election. See infra notes 478-479 and accompanying text. Ipsos likewise found that majorities support the availability of abortion medication by mail, with more than seventy percent of Americans in favor of women being able to access the pills from their doctor or clinic. Mallory Newall, Charlie Rollason & Bernard Mendez, Axios-Ipsos Survey: Most Americans Support Access to Medication Abortion, Ipsos (Mar. 29, 2024), https://www.ipsos.com/en-us/most-americans-support-access-medication-abortion [https://perma.cc/X64P-S883]. For sources discussing the numerous successful ballot initiatives in the 2024 election, see infra note 479.
Amended Complaint for Missouri, Kansas, and Idaho as Intervenor-Plaintiffs at 5, 22, All. for Hippocratic Med. v. FDA, No. 22-cv-00223 (N.D. Tex. Oct. 11, 2024). Comstock claims have also appeared in at least one new complaint filed after the election. Complaint at 27-28, Students for Life of Am. v. Gillespie, No. 24-cv-11928 (N.D. Ill. Nov. 20, 2024) (“Every abortion provider in the United States is violating [18 U.S.C. §§ 1461–1462’s] criminal prohibitions by obtaining abortion-inducing drugs or abortion related equipment through the mails . . . . The Biden Administration is refusing to prosecute abortion providers for these crimes, but they are criminal acts nonetheless.”).
Dan Diamond & Caroline Kitchener, Democrats Seek to Repeal Comstock Abortion Rule, Fearing Trump Crackdown, Wash. Post (June 20, 2024, 5:00 PM EDT), https://www.washingtonpost.com/health/2024/06/20/comstock-abortion-repeal-tina-smith-senate [https://perma.cc/TS2Y-TS6D]. For a discussion of the Comstock repeal effort, see David S. Cohen & Rachel Rebouché, Repealing Comstock, 104 B.U. L. Rev. Online 243, 246-48 (2024).
See infra notes 126-132 and accompanying text (describing the Comstock Act’s enactment). Before 1873, federal obscenity law made it a crime to import “indecent and obscene prints, paintings, lithographs, engravings, and transparencies,” Tariff Act of 1842, ch. 270, § 28, 5 Stat. 548, 566-67, or mail any “obscene book, pamphlet, picture, print, or other publication of a vulgar or indecent character,” Act of Mar. 3, 1865, ch. 89, § 16, 13 Stat. 504, 507.
See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 241 (2022) (looking at “state constitutional provision[s],” state and federal judicial decisions, scholarly treatises, and a “wave of statutory restrictions” to conclude that “[u]ntil the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion”); id. at 384-85 (Breyer, Sotomayor & Kagan, JJ., dissenting) (observing that “[a]ccording to the majority, no liberty interest is present—because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things,” including “same-sex intimacy and marriage,” contraceptive use, and the right “not to be sterilized without consent”).
There is a rich historiography on the antivice movement and the cultural moment to which Anthony Comstock contributed. Some work, like that of Nicola Kay Beisel, Whitney Strub, and P.C. Kemeny, tells the origin story of the antivice movement to which Comstock belonged. For a sample of this work, see generally Nicola Kay Beisel, Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America (1997); Whitney Strub, Obscenity Rules: Roth v. United States and the Long Struggle Over Sexual Expression (2013); and P.C. Kemeny, The New England Watch and Ward Society (2018). For other examples, see generally Robert Corn-Revere, The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma (2021), which describes Comstock’s rise in the antivice movement; Gaines M. Foster, Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920 (2002), which traces the development of the legislative accomplishments of conservative Protestant reformers in the nineteenth century; and Jeffrey Escoffier, Whitney Strub & Jeffrey Patrick Colgan, The Comstock Apparatus, in Intimate States: Gender, Sexuality, and Governance in Modern US History 40 (Margot Canaday, Nancy F. Cott & Robert O. Self eds., 2021), which maps the relationship between Comstock and the government.
Other scholars have chronicled the work of Comstock resisters, civil libertarians, and publishers. For examples, see Helen Lefkowitz Horowitz, Rereading Sex: Battles Over Sexual Knowledge and Suppression in Nineteenth-Century America 364-70 (2002); Amy Sohn, The Man Who Hated Women: Sex, Censorship, and Civil Liberties in the Gilded Age 26 (2021); and Amy Werbel, Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock 60-66 (2018). Still other work develops in-depth biographical portraits of key figures in the Comstock story, including Mary Ware Dennett and Margaret Sanger. For examples of this work, see generally Ellen Chesler, Woman of Valor: Margaret Sanger and the Birth Control Movement in America (2007); and Heather Munro Prescott & Lauren MacIvor Thompson, A Right to Ourselves: Women’s Suffrage and the Birth Control Movement, 19 J. Gilded Age & Progressive Era 542, 542-48, 550-51 (2020).
For work examining Comstock surveillance of same-sex relations, see generally Gregory Briker, The Right to Be Heard: ONE Magazine, Obscenity Law, and the Battle over Homosexual Speech, 31 Yale J.L. & Humans. 49 (2020); Jason M. Shepard, The First Amendment and the Roots of LGBT Rights Law: Censorship in the Early Homophile Era, 1958–1962, 26 Wm. & Mary J. Race Gender & Soc. Just. 599 (2020); and Carlos A. Ball, Obscenity, Morality, and the First Amendment: The First LGBT Rights Cases Before the Supreme Court, 28 Colum. J. Gender & L. 229 (2014).
Laura Weinrib is one of the few legal scholars to identify Mary Ware Dennett, a birth-control activist prosecuted for her distribution of a sex-education pamphlet, as playing an important role in the development of modern civil liberties and to show how legal scholars have effaced her contributions. See Laura Weinrib, The Sex Side of Civil Liberties: United States v. Dennett and the Changing Face of Free Speech, 30 Law & Hist. Rev. 325, 340-63 (2012) [hereinafter Weinrib, The Sex Side of Civil Liberties]; Laura Weinrib, The Taking of Free Speech: America’s Free Speech Compromise 172-78 (2016). Brett Gary recently published a painstakingly researched biography of lawyer Morris Ernst, who brought key cases challenging Victorian understandings of obscenity law, including Dennett’s. See Brett Gary, Dirty Works: Obscenity on Trial in America’s First Sexual Revolution 29-65 (2021). Historians of the First Amendment mention Comstock as an obscenity statute but rarely consider its enforcement in cases concerning contraception and abortion. See Geoffrey Stone, Sex and the Constitution: Sex, Religion, and the Law from America’s Origins to the Twenty-First Century 157-67 (2017); David M. Rabban, Free Speech in Its Forgotten Years 27-37 (1997). For one of the more thorough surveys of the case law, see Michael T. Gibson, The Supreme Court and Freedom of Expression from 1791 to 1917, 55 Fordham L. Rev. 263, 293-309 (1986). David S. Cohen, Greer Donley, and Rachel Rebouché have recently addressed Comstock in a prominent analysis of the use of medication abortion and its legal regulation. David S. Cohen, Greer Donley & Rachel Rebouché, Abortion Pills, 76 Stan. L. Rev. 317, 342-47 (2023). Other scholars have addressed Comstock’s applicability in the wake of Dobbs. See Danny Y. Li, The Comstock Act’s Equal Protection Problem, 123 Mich. L. Rev. Online 42, 42-47 (2025); Ebba Brunnstrom, Note, Abortion and the Mails: Challenging the Applicability of the Comstock Act Laws Post-Dobbs, 55 Colum. Hum. Rts. L. Rev. 1, 5-6, 26-29 (2024) (advocating for a “narrow” construction and present-day application of Comstock).
Originalists, textualists, and purposivists all take account of linguistic, doctrinal, and historical context, even as they do so in very different ways. “Because the meaning of language depends on the way a linguistic community uses words and phrases in context, textualists recognize that meaning can never be found exclusively within the enacted text.” John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 78 (2006); see also id. at 91 (arguing that “[t]extualists give primacy to the semantic context,” whereas “[p]urposivists give precedence to policy context”); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 40 (2012) (“The soundest legal view seeks to discern literal meaning in context.”); Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1385 (2014) (reviewing Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (2012)) (explaining that for public-meaning originalists, “[t]he text of course must be understood in terms of the original public meaning of its words and phrases, in the linguistic, social, and political contexts in which they were written”).
There is considerable variation in how the Justices follow textualist precepts, with individuals varying over time. See William N. Eskridge, Jr., Brian G. Slocum & Kevin Tobia, Textualism’s Defining Moment, 123 Colum. L. Rev. 1611, 1661-62 (2023) (explaining that in Indian law cases, Justices inconsistently rely upon historical and social context since, “[i]n Navajo Nation, Kavanaugh’s opinion for the Court stuck to the language of the Treaty of 1868, while Gorsuch explored the rich social and political context of the Treaty. But in McGirt, Kavanaugh joined the Chief Justice’s history-soaked dissenting opinion. . . . Alito and Thomas found extensive social history dispositive in McGirt . . . but not in Navajo Nation”); Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 266-67 (2020) (showing that Justices committed to textualism divided over how to decide Bostock, employing different methods in determining which contexts were relevant to interpreting the statute). And judges may bring role-based concerns to the interpretation of statutes that interpreters in academics or politics do not. See Manning, supra, at 96 (discussing concerns about legislative supremacy that may lead a judge to embrace textualism or purposivism); see also Clint Bolick, The Case for Legal Textualism, Hoover Inst. (Feb. 27, 2018), https://www.hoover.org/research/case-legal-textualism [https://perma.cc/7WD7-RCKD] (justifying textualism as promoting judicial constraint and preserving the legislature’s democratic authority).
See infra notes 137-152 and accompanying text. The term “abortion,” by contrast, applied to miscarriage and was not a crime. See infra notes 137-142 and accompanying text. For further discussion of Comstock’s enactment and language, see infra Sections I.A and IV.B. Many contemporaneous accounts of unlawful abortion applied to procedures undertaken with criminal intent only after quickening. See infra notes 139-141 and accompanying text. As we show in Part IV, Congress later amended the statute to refer to “producing” as well as “procuring” abortion, a change that did not alter the statute’s scope. See infra Section IV.B. For a discussion of the deference historically accorded to doctors’ good-faith judgments about circumstances warranting lifesaving terminations, see Reva B. Siegel & Mary Ziegler, Abortion’s New Criminalization—A History-and-Tradition Right to Healthcare Access After Dobbs, 111 Va. L. Rev. (forthcoming 2025) (manuscript at 21-35), https://ssrn.com/abstract=4881886 [https://perma.cc/5BGJ-54VM].
Fertility rates in the United States dropped from 7.0 in 1835 to 2.1 in 1935, with native-born couples experiencing the most significant decline. J. David Hacker & Evan Roberts, Fertility Decline in the United States, 1850-1930: New Evidence from Complete-Count Datasets, 138 Annales de Démographie Historique 143, 170-71 (2019) (finding that amid the decline, foreign-born couples had much higher marital fertility rates than native-born couples, though this divide narrowed or reversed by 1930); see also Janet Farrell Brodie, Contraception and Abortion in Nineteenth-Century America 2-3 (1994) (explaining that most of the decline occurred among native-born white married couples between 1840 and 1880). The extent to which this decline is attributable to contraceptive use or other methods of deliberate family limitation is debated. Compare Brodie, supra, at 4 (describing disagreement among historians about the relative importance of “deliberate family limitation” in the country’s declining birth rates), with Andrea Tone, Black Market Birth Control: Contraceptive Entrepreneurship and Criminality in the Gilded Age, 87 J. Am. Hist. 435, 456 (2000) (suggesting that contraceptives “played a critical role” in dropping fertility rates).
In the nineteenth century, the United States saw an influx of millions of European immigrants, with numbers of newcomers rising from 150,000 in the 1820s, to 1.4, 2.8, 2.1, and 2.7 million in the 1840s, 1850s, 1860s, and 1870s, respectively. Carl J. Bon Tempo & Hasia R. Diner, Immigration: An American History 65-66 (2022). On the influence of immigration on antivice activism, see Beisel, supra note 18, at 109-17, 126-30.
The mails took on massive new importance in the nineteenth century. See David M. Henkin, The Postal Age: The Emergence of Modern Communications in Nineteenth-Century America 2 (2006). While the post was not new, the way the mails operated changed fundamentally in the mid-nineteenth century, with postal access coming to seem a “fundamental condition of modern life.” Id. at 3. Nineteenth-century commentators perceived the importance of mails in this way, as one noted: “How society in the nineteenth century could exist without mail routes and the regular delivery of letters, it is impossible to conceive.” J. Holbrook, Ten Years Among the Mail Bags: Or, Notes from the Diary of a Special Agent of the Post-Office Department 292 (Philadelphia, H. Cowperthwait & Co. 1855); see also Richard R. John, Spreading the News: The American Postal System from Franklin to Morse 11 (1998) (noting that many commentators of this period shared this view).
See Henkin, supra note 33, at 27-41 (describing the importance of the mails to market participation and interpersonal communication); Winifred Gallagher, How the Post Office Created America: A History 207-16 (2017) (detailing how the advent of cheap, fast mailing of magazines, newspapers, and catalogs shaped politics, consumer practices, and intimate life).
See Ellen Carol DuBois, Suffrage: Women’s Long Battle for the Vote 83-93 (2020); Siegel, supra note 31, at 971-73. Victoria Woodhull’s role as a symbol of the suffrage and free-love movements, and her willingness to criticize the gendered hierarchy of marriage, made her a particular target for sexual-purity crusaders. For further discussion of Woodhull’s arguments and arrest, see infra notes 103-109, 263-264 and accompanying text.
Shortly before passage of the 1873 law, Anthony Comstock had prosecuted Victoria Woodhull for violating an 1865 federal law prohibiting the mailing of any “obscene book, pamphlet, picture, print, or other publication of a vulgar or indecent character.” Helen Lefkowitz Horowitz, Victoria Woodhull, Anthony Comstock, and Conflict over Sex in the United States in the 1870s, 87 J. Am. Hist. 403, 420 (2000); see Sohn, supra note 18, at 66-75. For the 1865 law, see Act of Mar. 3, 1865, ch. 89, § 16, 13 Stat. 504, 507. On Woodhull’s acquittal and its influence on Comstock, see Escoffier et al., supra note 18, at 55-56; and Donna Dennis, Licentious Gotham: Erotic Publishing and Its Prosecution in Nineteenth-Century New York 252 (2009). For further discussion of Woodhull’s influence on the Comstock Act and broader debates about voluntary motherhood, see infra notes 95-111 and accompanying text.
Twenty-four states enacted so-called mini-Comstock Acts. See Andrea Tone, Devices and Desires: A History of Contraceptives in America 27 (2001). Many such laws went further than the federal statute: twelve made illegal speech about abortion or contraception, for example, while eleven criminalized the possession of information about contraception. Allan C. Carlson, Godly Seed: American Evangelicals Confront Birth Control, 1873-1973, at 35 (2012). Connecticut, which passed the law struck down in Griswold v. Connecticut, 381 U.S. 479 (1965), was the only state to criminalize contraceptive use. Carlson, supra, at 35. For further discussion of these laws and their twentieth-century constitutional analysis, see infra Part III.
Women lacked political power to set legislative agendas until late into the twentieth century, and legislators were reticent to repeal obscenity laws. In Part III, we show how women’s persisting marginalization interacted with the stigmatization of political speech about sex and reproduction, deforming democratic politics decades after the prosecutions ended.
See Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions, 46 Op. O.L.C., slip op. at 1-5, 8-10 (Dec. 23, 2022) [hereinafter OLC Memo], https://www.justice.gov/olc/opinion/file/1560596/dl?inline [https://perma.cc/5892-AGCU]. See generally Brief for Former U.S. Department of Justice Officials as Amici Curiae in Support of Petitioners, FDA v. All. for Hippocratic Med., 602 U.S. 367 (2024) (Nos. 23-235, 23-236) (discussing the legislative history and prior judicial interpretations of the Comstock Act).
See OLC Memo, supra note 52, slip op. at 1-6, 3 n.6. This codification of the Comstock Act was part of Congress’s comprehensive revision, codification, and enactment into positive law of Title 18 of the U.S. Code—covering “Crimes and Criminal Procedure”—and was accompanied by a Historical and Revision Note that addressed the 1930s cases. See id. at 11-15, 12-13 nn.12-15; Act of June 25, 1948, ch. 645, § 1461, 62 Stat. 683, 683, 768; see also infra note 399 and accompanying text (discussing the Historical and Revision Note).
The OLC Memo asserts that “the Judiciary, Congress, and USPS have all settled upon an understanding of the reach of section 1461 and related provisions of the Comstock Act that is narrower than a literal reading might suggest.” OLC Memo, supra note 52, slip op. at 5. And it refers to cases holding that the Comstock Act does not prohibit a sender from conveying “items that can be used to prevent or terminate pregnancy” as a “narrowing construction” that subsequent congressional action ratified. Id. It reiterates this account of the case law as “narrowing” the statute throughout. See, e.g., id., slip op. at 10 (discussing the “narrowing construction upon which the courts of appeals had converged”).