The Comstock Act of 1873 was not meant to be, nor did it ever function as, a total abortion ban.Footnote 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.Footnote 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.Footnote 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.Footnote ⁴

The version of the Comstock Act first introduced to Congress in the winter of 1873 had a medical exception that would allow for physicians to prescribe abortion and birth control. The reasons for the exemption’s initial inclusion and deletion, as well the act’s subsequent enforcement patterns, reveal a deeply complicated medico-legal regime. Sponsored initially by Minnesota Republican Senator William Windom, the finalized bill emerged from the Committee on Post Office and Post Roads in February 1873. Senator George Edmunds (R-Vermont) then added an amendment with new phrasing that prohibited “any article or medicine for the prevention of conception, or for causing abortion, except on a prescription of a physician in good standing, given in good faith” (emphasis added). Senator William Buckingham, the former Civil War governor of Connecticut, swiftly intervened, however, and moved to remove Edmunds’s new addition.Footnote ⁵

Why Edmunds added the exemption and why Buckingham removed it is somewhat of a political and legislative mystery, as the details of the debate are very brief in the historical record. Historian Andrew Wender Cohen has noted in his piece for this same issue that the Comstock Act’s passage was subject from its inception to wrangling between Republican factions at odds over various aspects of postwar Reconstruction policy. All of the senators who helped to create or pass the bill were Republicans, but it is not clear that intraparty rivalries played a role in the passage of the Comstock Act within Congress itself during the weeks it was debated. Nor did there appear to be significant opposition to the bill from Democrats, largely because the “elements opposed to Comstockery” were not openly represented on the political agendas of Democratic Congressmen.Footnote ⁶ Both Buckingham’s upbringing and his personal affinity for Anthony Comstock’s agenda, however, perhaps help to explain his motivations. Like Comstock, Buckingham was raised in Connecticut and descended from a long line of Puritan ministers. Both men had grown up on farms less than a hundred miles apart from each other, and both had gone to work in New York as young men. Buckingham, like Comstock, worked as a dry goods clerk in the city before returning to Norwich to start in the carpet and rubber businesses.Footnote ⁷

In any case, because of Buckingham’s quick change in wording, most senators never saw the exception or got to debate its merits. The Congressional Record shows senators’ confusion concerning Buckingham’s amendment to the amendment when the bill was brought to floor. New York Senator Roscoe Conkling, another Republican, complained that “no Senator is able to get any intelligent idea of the substance of this amendment as contrasted with that which it is to take the place of.” To this complaint, Buckingham replied, “There is no material alteration in the section. It is rather to strengthen it than otherwise.” Conkling was nonplussed, leading Buckingham to execute another verbal dodge. He stated evasively, “The words in the thirteenth line are stricken out. I cannot give the details without looking at the bill.”Footnote ⁸

Republican Senator Hannibal Hamlin from Maine then also challenged Buckingham after this statement, accusing him of being up to no good. He commented, “I think the Senate had better take the bill precisely as it came from the committee … this kind of … tinkering by a single Senator with a subject so important to the country as this … does not meet my approbation.” Senator Conkling agreed. “If I were to be questioned now as to what this bill contains, I could not aver anything certain in regard to it. The indignation and disgust which everybody feels … may possibly lead us to do something which … will not be the thing we would have done if we had understood it.” There was no further discussion, however, and it passed the Senate on February 21. In the House, Representative Michael Kerr (D-Indiana) also noted that the bill seemed to be pushed through in “hot haste,” but it was passed over his objections and there was no other live discussion.Footnote ⁹ President Ulysses S. Grant signed the Comstock Act into law on March 3, 1873, and Congress ended its session the following day. The law was immediately unpopular and the subject of both ridicule and serious political efforts to protest it.Footnote ¹⁰

Congress’s removal of the draft statute’s phrasing – “a physician in good standing, given in good faith” – signaled the many complexities of American medical and pharmaceutical practice at the time. Unregulated (and often dangerous) patent medicines containing emmenagogic ingredients that were known to induce menstruation and abortion were widely available in this period, sold with names like “French Periodical Pills” that promised “relief for ladies.”Footnote ¹¹ Licensed doctors as well as unlicensed practitioners performed abortions. Although medical schools had expanded and states had established professional societies and licensing laws, medicine in this era was far from certain science. Trained physicians did not necessarily achieve better health outcomes for their patients and the field was divided into multiple sects that had wide differences in approaches to treatment. “Regular” licensed physicians who had received medical education derisively called these sectarians, midwives, healers, and other practitioners “irregulars.” All nonetheless battled for expertise, patients, and dollars.Footnote ¹² Most Americans treated their own ailments, and it was usually women or the local midwife who served as the “family physician.” Reliance on self-treatment also drove an unregulated but thriving commercial market for patent medicines and self-administered medical instruments.Footnote ¹³ Also part of the home medical economy were contraceptive devices and preparations, as well as abortifacients.Footnote ¹⁴

Abortion was already a decades-old reform issue by the time of the Comstock Act’s passage. In an aggressive bid for professional dominance, the American Medical Association (AMA) and its members sought to shut down the medical practice of “irregulars” beginning in the 1840s. Part of this initiative involved drafting new antiabortion laws that were meant to eliminate competition.Footnote ¹⁵ In the years just before and after the Comstock Act’s passage, AMA members helped to author and ratify over thirty separate antiabortion measures in state and territorial legislatures.Footnote ¹⁶ Many of these laws had various forms of therapeutic exceptions, however, that continued to allow for abortions by licensed physicians (and in fact, put them solely in charge of performing them) for medical reasons.Footnote ¹⁷

In the Comstock Act, the final inclusion of the phrase “unlawful abortion” thus helped to preserve the specifications of already extant abortion laws in the states. Comstock sniped in his diary (without providing evidence) that Edmunds’s medical exception amendment probably stemmed from having “friends in this business that he desires to shield,” referencing abortion-performing “irregulars” or even perhaps a trained doctor who was performing them for money outside legal bounds.Footnote ¹⁸ More likely, Edmunds may have been thinking of eliminating confusion and repeating similar exemption language that already existed in most state abortion laws of the time. His home state of Vermont had passed its first abortion law in 1846 as part of an overhaul of its general criminal code, and then updated it in 1867, one year after Edmunds joined the U.S. Senate. Vermont’s state medical society had lobbied for the update and sought to restrict abortion on “any pregnant woman” as well as the sale of abortifacients by “any merchant, druggist, peddler, or any person whatever” who would compete with regular physicians. It also preserved a life exception and specifically exempted the pregnant woman from criminal liability.Footnote ¹⁹ Birth control reformer Mary Ware Dennett also observed the unlikelihood of a total ban in her comprehensive 1926 study, Birth Control Laws. “Why [the medical exception] was later omitted does not appear in the [Congressional] Record,” she wrote, “but its original existence proves that there was at least some glimmering of realization somewhere that a wholesale prohibition was not the aim of the statute.”Footnote ²⁰

Senator Edmunds’s willingness to include birth control in the exemption is also noteworthy. After all, because of extant state laws, a licensed physician might recommend or perform a perfectly lawful abortion for medical reasons. Pregnant women might legally self-induce an early-term abortion with no one but themselves the wiser in states where quickening was the standard. Women who were not pregnant but had a late period might use the same emmenagogue to simply “bring down the menses.” Birth control was different and was even more complicated by the fact that contraceptive and abortifacient methods and drugs overlapped, even into the early twentieth century.Footnote ²¹ Most scandalously, however, contraception in theory allowed women to simply opt out of pregnancy in the first place.Footnote ²² For Protestant moral reformers, this possibility was a threat to both the safety and stability of the white patriarchal family, gender roles, and the nation itself, and it is not surprising that the Comstock Act ultimately “made pregnancy prevention the more serious crime.”Footnote ²³

Long after the bill’s passage, the perception remained that Comstock had singled out birth control as its chief target, even above other forms of obscenity. Henry E. Allen, former secretary for the National Social Science League, explained this view in an 1897 editorial for the famous anarchist free love periodical, Lucifer the Light Bearer. “For many years it has been a matter of surprise to me why so many hold to the belief that the Comstock law was intended to prevent the dissemination of obscene literature,” he wrote. “This was never the real purpose of the law … The intent and purpose of the Comstock law is to prevent the dissemination of all knowledge pertaining to contraceptic [sic] science – not obscene literature.”Footnote ²⁴ The statute was also enforced in an era without the regulatory apparatus of the Food and Drug Administration and its targeting of both abortion and birth control centered largely on patent medicines and their advertising and distribution. Although historians have explored the history of American pharmacy and patent medicines, there is more work needed to determine the overlap of the federal Comstock Act, state obscenity laws, and early state pharmaceutical regulation.Footnote ²⁵

Comstock probably did not mean his law to function as a nationwide ban on abortion or even on prescriptions for contraception from physicians. As legal scholars Reva Siegel and Mary Ziegler have argued, the legal history of Comstock enforcement illustrates that the law did not target the physician-patient relationship or the medical aspects of abortion or contraception.Footnote ²⁶

At the end of his life, Anthony Comstock wrote to a birth control reformer denying his law restricted access to medically necessary abortion or birth control. “I challenge your League to produce a single case where any reputable physician has been interfered with or disturbed in the legitimate practice of medicine. Do not make the mistake, however, of classifying the quack, and the advertiser of articles for abortion and to prevent conception with reputable physicians.”Footnote ²⁷ In an interview with the reporter Mary Alden Hopkins that appeared around the same time in Harper’s Weekly, Comstock again clarified his position. “A reputable doctor may tell his patient in his office what is necessary, and a druggist may sell on a doctor’s written prescription drugs which he would not be allowed to sell otherwise.”Footnote ²⁸ Birth control reformer Mary Ware Dennett called Comstock’s bluff on his insistence that his law did not affect “reputable physicians,” arguing his reasoning was “baffling.” “[E]ither he did not fully realize the meaning of the laws which he himself framed, or else he hopefully confused the actual wording of the laws with his personal choices,” she wrote. The law made it “just as criminal for a conscientious doctor to send needed contraceptive instructions to a patient, as for a sex pervert to send an advertisement of contraceptive means with his depraved literature.”Footnote ²⁹

While physicians, abortionists, pharmacists, and patent medicine manufacturers were all prosecuted under the law for procuring or performing abortions or selling or administering birth control, these charges comprised few of the nearly four thousand obscenity arrests that Comstock claimed to have made by the end of his career.Footnote ³⁰ Early biographers also commented on this phenomenon, noting, “Generally speaking, Comstock had no great luck among the so-called abortionists.”Footnote ³¹ Despite the fact that one out of four obscenity prosecutions in Chicago in the late nineteenth and early twentieth centuries dealt with contraceptives or abortifacients, only seven resulted in prison sentences for the perpetrators.Footnote ³² In New York, Comstock and agents of the New York Society for the Suppression of Vice redoubled their efforts to arrest birth control and abortifacient purveyors beginning in the mid-1890s, but they were never the majority of obscenity arrests overall.Footnote ³³ In fact, Comstock often felt frustrated that judges refused to convict those who performed illegal abortions, complaining that they received but “the smallest fine and no imprisonment.”Footnote ³⁴ Comstock was most concerned that people were having extramarital sex and were using birth control or illegal abortion to cover up their immoral misdeeds.Footnote ³⁵

The fact remained, of course, that the Comstock Act’s wording in the statute still criminalized physicians for medical advice or treatment. Eventually, a series of appellate cases including United States v. Dennett (1930), Youngs Rubber Corporation v. C. I. Lee (1930), and United States v. One Package of Japanese Pessaries (1936) reclassified contraception as part of health and medicine.Footnote ³⁶ The Great Depression had rapidly amplified new economic and cultural rationales for birth control, and physicians were chafing at restrictions their predecessors had put into place that continued to limit their authority and expertise.Footnote ³⁷ Beginning in the 1920s, new medical and scientific research on human fertility and methods of contraception had also sought to move beyond the “black market” for reproductive control and establish birth control clinics run by physicians and clinical trials on new contraceptive methods.Footnote ³⁸ These cases affirmed that contraception or knowledge of sex was not obscenity, and that “conscientious and competent” physicians had the “right to prescribe” for the health of their patients.Footnote ³⁹

The Comstock Act’s provisions on abortion and contraception seemed to emerge in Congress not from negotiation, but from a combination of confusion and prevarication. Frankly, this theme would continue throughout the Act’s enforcement period. After all, the ultimate power of Comstock—both the man and the law—only partially stemmed from the actual number of arrests made or fines imposed. Instead, the greatest strength of “Comstockery” was rooted in the art of intimidation and the restrictions it placed on discussions of sex throughout much of the twentieth century.Footnote ⁴⁰ The political maneuvering that resulted in the removal of its medical exception illustrates the complicated relationship between vice and reproductive control in late nineteenth-century America, and the vast gulf between “regular” medicine and the reasons for the thriving commercial market for birth control and abortifacients. Of course, Anthony Comstock himself did not care much for splitting these hairs. Violators of his law, no matter the substance of their crime, were “all knaves and miscreants, and there were no whites or grays among the black ranks of the sinful.”Footnote ⁴¹