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Published online by Cambridge University Press: 18 February 2025
The Comstock Act of 1873 was not meant to be, nor did it ever function as, a total abortion ban.1 This fact is important to emphasize in our current political moment because those who want to revive the statute have argued that the Comstock Act is an existing (if dormant) law that already bans abortion on a federal level. They have also argued that the law completely outlawed abortion in the past.2 The statute’s legislative and enforcement history, however, tells a different story. It was first and foremost a law about obscenity and sexual purity.3 It contained provisions for outlawing abortion and contraception, but the bill’s author, Anthony Comstock, along with his fellow vice crusaders, were mostly concerned about controlling illicit sexuality and censoring sexual material. From the beginning, the law was inconsistently and less often applied to violations involving abortion and contraception than it was against other forms of obscenity.4
1 Despite revivalists’ recent claims of the clear meaning of the Comstock Act as an abortion ban, historians and legal scholars have long addressed the statutory complexities and uneven enforcement of its restrictions on abortion and contraception. For the most current and comprehensive overview, see Reva Siegel and Mary Ziegler, “Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and Again May Threaten It,” Yale Law Journal 134 (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4761751 (accessed June 11, 2024).
2 In June 2024, the Supreme Court decided Food and Drug Administration v. Alliance for Hippocratic Medicine, No. 23-235, slip op. (U.S. June 13, 2024), part of a rapidly shifting legal landscape on abortion regulation. Respondents in this case cited the Comstock Act and past enforcement history on abortion as part of their reasoning in asking the Court to restrict mifepristone, which is part of FDA-approved medication abortion protocol. See Brief for the Respondents, in U.S. Food and Drug Administration et. al., v. Alliance for Hippocratic Medicine et al., and Danco Laboratories, L.L.C, v. Alliance for Hippocratic Medicine, et al. Nos. 23-235, 23-236 (U.S. Feb 22, 2024).
3 For general histories of the Comstock Act and obscenity enforcement, see, for example, Beisel, Nicola Kay, Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America (Princeton, NJ: Princeton University Press, 1998)CrossRefGoogle Scholar; Horowitz, Helen Lefkowitz, Rereading Sex: Battles over Sexual Knowledge and Suppression in Nineteenth-Century America (New York: Knopf, 2002)Google Scholar; Helen Lefkowitz Horowitz, “Victoria Woodhull, Anthony Comstock, and Conflict over Sex in the United States in the 1870s,” Journal of American History 87 (Sept. 2000): 403–34; Sohn, Amy, The Man Who Hated Women: Sex, Censorship, and Civil Liberties in the Gilded Age (New York: Farrar, Straus and Giroux, 2021)Google Scholar; Whitney Strub, Obscenity Rules: Roth v. United States and the Long Struggle over Sexual Expression (Lawrence: University Press of Kansas, 2013); Werbel, Amy, Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (New York: Columbia University Press, 2018)CrossRefGoogle Scholar.
4 For work that specifically addresses the disparity in arrests for contraception and birth control versus other kinds of obscenity, see, for example: Shirley J. Burton, “Obscene, Lewd, and Lascivious: Ida Craddock and the Criminally Obscene Women of Chicago, 1873–1913,” Michigan Historical Review 19 (Apr. 1993); Elizabeth Bainum Hovey, “Stamping out Smut: The Enforcement of Obscenity Laws, 1872–1915” (PhD diss., Columbia University, 1998); Siegel and Ziegler, “Comstockery”; Kennedy, David M., Birth Control in America: The Career of Margaret Sanger (New Haven, CT: Yale University Press, 1970)Google Scholar; Thompson, Lauren MacIvor and O’Donnell, Kelly, “Contemporary Comstockery: Legal Restrictions on Medication Abortion,” Journal of General Internal Medicine 37 (June 2022): 2564–67CrossRefGoogle ScholarPubMed. These scholars show that the Comstock Act’s focus was about maintaining sexual purity and morality, not banning reproductive rights that were otherwise legally protected for health reasons. However, both nineteenth-century abortion laws and the Comstock Act’s censorship of contraception and abortion severely curtailed access and cemented their association with illicitness, licentiousness, and crime.
5 United States Congress, Congressional Globe and Appendix: Third Session Forty-Second Congress: In Three Parts, Part II (Washington, DC: F. & J. Rives & George A. Bailey, 1873), 1436; Broun, Heywood and Leech, Margaret, Anthony Comstock, Roundsman of the Lord (New York: Albert & Charles Boni, 1927), 135 Google Scholar; Mary Ware Dennett, Birth Control Laws, Shall We Keep Them, Change Them, or Abolish Them (New York: F. H. Hitchcock, 1926), 20; United States v. One Package of Japanese Pessaries, 86 F.2d 737, 739-40 (2d. Cir. 1936).
6 Senator Edmunds’s congressional work had aligned with typical “radical Republican” support for Reconstruction, such as his sponsorship of new state admissions that ensured racial equality in male suffrage. See Crockett, Walter Hill, “George F. Edmunds,” The Vermonter: The State Magazine 24, no. 3–4 (1916): 31–34 Google Scholar. notes, Historian C. Thomas Dienes, “Although party and institutional variables do not appear to have played any major role at the prescriptive stage, considerations of constituency attitudes and interest-group strength, as well as the legislator’s personal value system, do seem to have been vital.” C. Thomas Dienes, Law, Politics, and Birth Control (Urbana: University of Illinois Press, 1972), 48 Google Scholar. See also Gaines M. Foster, Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920 (Chapel Hill: University of North Carolina Press, 2003).
7 Tarbox, Increase N., Sketch of William Alfred Buckingham (Boston: A. Mudge & Son, 1876)Google Scholar.
8 Congressional Globe and Appendix, Part II, 1525.
9 United States Congress, Congressional Globe and Appendix: Third Session Forty-Second Congress: In Three Parts, Part III (Washington, DC: F. & J. Rives & George A. Bailey, 1873), 2005.
10 A typical cartoon ridiculing the Comstock Act appeared in Life in 1888. P. M. Howarth’s “That Fertile Imagination” depicted Anthony Comstock arresting an artist painting a presumably nude woman submerged in a lake, with only her head visible. Comstock says in the caption, “Don’t you suppose I can imagine what is under the water?” P. M. Howarth, “That Fertile Imagination,” Life 11 (Jan. 1888): 18. See also Dienes, Law, Politics, and Birth Control, 68–69.
11 Brodie, Janet Farrell, Contraception and Abortion in Nineteenth-Century America (Ithaca, NY: Cornell University Press, 1997)Google Scholar; Tone, Andrea, Devices and Desires: A History of Contraceptives in America (New York: Hill and Wang, 2001)Google Scholar. On the dangers of commercial abortifacients, see Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 (Berkeley: University of California Press, 1997), 209; Reagan, Leslie J., “‘About to Meet Her Maker’: Women, Doctors, Dying Declarations, and the State’s Investigation of Abortion, Chicago, 1867–1940,” Journal of American History 77 (Mar. 1991): 1240–64CrossRefGoogle ScholarPubMed.
12 On broader histories of American medicine, see Grossman, Lewis A., Choose Your Medicine: Freedom of Therapeutic Choice in America (New York: Oxford University Press, 2021)CrossRefGoogle Scholar; Joseph F. Kett, The Formation of the American Medical Profession: the Role of Institutions, 1780–1860 (New Haven, CT: Yale University Press, 1968); William G. Rothstein, American Physicians in the Nineteenth Century: From Sects to Science (Baltimore: Johns Hopkins University Press, 1972); Starr, Paul, The Social Transformation of American Medicine: The Rise of a Sovereign Profession and the Making of a Vast Industry (New York: Basic Books, 2008)Google Scholar; Tomes, Nancy, Remaking the American Patient: How Madison Avenue and Modern Medicine Turned Patients into Consumers (Chapel Hill: University of North Carolina Press, 2016)Google Scholar.
13 Jane Marcellus, “Nervous Women and Noble Savages: The Romanticized ‘Other’ in Nineteenth-Century US Patent Medicine Advertising,” Journal of Popular Culture 41 (Oct. 2008): 784–808; Young, James Harvey, The Toadstool Millionaires: A Social History of Patent Medicines in America before Federal Regulation (Princeton, NJ: Princeton University Press, 2015)CrossRefGoogle Scholar.
14 See Brodie, Contraception and Abortion; John C. Burnham, Healthcare in America: A History (Baltimore: Johns Hopkins University Press, 2015), 83; S E. Klepp, , Revolutionary Conceptions: Women, Fertility, and Family Limitation in America, 1760–1820 (Chapel Hill: University of North Carolina Press, 2009)CrossRefGoogle Scholar; Tone, Devices and Desires.
15 This history has been well-documented by historians of medicine in the context of the history of childbirth and midwifery. See Brodie, Contraception and Abortion; Mohr, James C., Abortion in America: The Origins and Evolution of National Policy (New York: Oxford University Press, 1979)Google Scholar; Reagan, When Abortion Was a Crime.
16 Mohr, Abortion in America, 200.
17 Mohr, Abortion in America, 186.
18 Broun and Leech, Anthony Comstock, 135; Mohr, James C., Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America (Baltimore: Johns Hopkins University Press, 1996)CrossRefGoogle Scholar.
19 The General Statutes of the State of Vermont, 2nd ed. (Cambridge, MA: Riverside Press, 1870), 968–69; Mohr, Abortion in America, 210.
20 Dennett, Birth Control Laws, 20. Dennett went even further to suggest that contraceptive knowledge should not be kept within the domain of physicians at all, but rather be “part of general hygiene and education.”
21 Sarah E. Patterson, “Being Careful: Progressive Era Women and the Movements for Better Reproductive Health Care” (PhD diss., State University of New York at Albany, 2020); Riddle, John M., Eve’s Herbs: A History of Contraception and Abortion in the West (Cambridge, MA: Harvard University Press, 1999)Google Scholar.
22 Contraceptive devices and methods in this period had high failure rates. See Brodie, Contraception and Abortion, 73; Klepp, Revolutionary Conceptions, 48–49.
23 Tone, Devices and Desires, 22.
24 Henry E. Allen, “Abortion and the Comstock Law,” Lucifer the Light Bearer, Jan. 6, 1897.
25 Cowen, David L., “The Development of State Pharmaceutical Law,” Pharmacy in History 37, no. 2 (1995): 49–58 Google ScholarPubMed; Gabriel, Joseph M., Medical Monopoly: Intellectual Property Rights and the Origins of the Modern Pharmaceutical Industry (Chicago: University of Chicago Press, 2014)CrossRefGoogle Scholar; Joseph M. Gabriel, “Restricting the Sale of ‘Deadly Poisons’: Pharmacists, Drug Regulation, and Narratives of Suffering in the Gilded Age,” Journal of the Gilded Age and Progressive Era 9 (July 2010): 313–36.
26 Siegel and Ziegler, “Comstockery.”
27 Anthony Comstock to Clara Gruening Stillman, Apr. 28, 1915, Additional Papers of Mary Ware Dennett, Schlesinger Library, Harvard University, Cambridge, Massachusetts.
28 “Birth Control and Public Morals,” Harpers’ Weekly, May 22, 1915.
29 Dennett, Birth Control Laws, 42.
30 In a 1915 letter to Clara Gruening Stillman, secretary of the National Birth Control League, Comstock claimed he had arrested 3,870 people for obscenity. Comstock to Stillman, Apr. 28, 1915, Schlesinger Library. Elizabeth Hovey’s research found 3,941 total arrests between 1872 and 1915, although SSV records claimed 3963 total cases by the end of 1915. See Hovey, “Stamping out Smut,” 17 n.35.
31 Broun and Leech, Anthony Comstock, 160.
32 Burton, “Obscene, Lewd, and Lascivious,” 8; Siegel and Ziegler, “Comstockery,” 37.
33 Hovey, “Stamping out Smut,” 202–32.
34 Broun and Leech, Anthony Comstock, 165.
35 Amy Werbel, Lust on Trial, 68–69.
36 United States v. Dennett, 39 F.2d 564 (1930); Youngs Rubber Corporation v. CI Lee & Co., 45 F.2d 103 (1930); One Package. For specifics on Dennett, see John M. Craig, “‘The Sex Side of Life’: The Obscenity Case of Mary Ware Dennett,” Frontiers: A Journal of Women Studies 15 (Jan. 1995): 145–66; and Laura M. Weinrib, “The Sex Side of Civil Liberties: United States v. Dennett and the Changing Face of Free Speech,” Law and History Review 30 (May 2012): 325–86.
37 Trent MacNamara, Birth Control and American Modernity: A History of Popular Ideas (Cambridge: Cambridge University Press, 2018).
38 Cathy Moran Hajo, Birth Control on Main Street: Organizing Clinics in the United States, 1916–1939 (Urbana: University of Illinois Press, 2010); Holz, Rose, The Birth Control Clinic in a Marketplace World (Rochester, NY: Boydell & Brewer, 2014)Google Scholar; Sarch, Amy, “Dirty Discourse: Birth Control Advertising in the 1920s and 1930s” (PhD diss., University of Pennsylvania, 1994)Google Scholar; Schoen, Johanna, Choice and Coercion: Birth Control, Sterilization, and Abortion in Public Health and Welfare (Chapel Hill: University of North Carolina Press, 2005)Google Scholar; Tone, Andrea, “Black Market Birth Control: Contraceptive Entrepreneurship and Criminality in the Gilded Age,” Journal of American History 87 (Sept. 2000): 435–59CrossRefGoogle ScholarPubMed.
39 One Package.
40 Coined by the Irish playwright George Bernard Shaw, “Comstockery” became the word for the Comstock Law’s brand of overzealous sexual censorship. See L. W. Connolly, Bernard Shaw on the American Stage: A Chronicle of Premieres and Notable Revivals (Switzerland: Springer International, 2022), 118.
41 Broun and Leech, Anthony Comstock, 130.