It Is Time to Repeal The Comstock Act

Were he living today, Anthony Comstock, for whom the 1873 Comstock Act is named, would be the darling of Christofascists and evangelical extremist who want to outlaw anything that departs from their Bronze Age derived dogma.   Comstock was all for banning and burning offending books and sought to impose his puritanical beliefs on all of society - just like today's scamvangelists and right wing pastors.  In the wake of Arizona's insane Supreme Court ruling this week resurrecting an 1864 law banning abortion and would be Trump 2.0 regime players scheming to use the Comstock Act to ban abortions - and perhaps much, much more - the GOP game plan to breath new life into reactionary statutes still on the books (although heretofore unenforced) to accomplish what they cannot otherwise accomplish through legislation on a national level has been fully exposed. Indeed, the GOP seemingly wants to move America backward in time to when women could not vote and were deemed chattel property of their husbands.   Given the broad scope of the language of the Comstock Act, gays, book publishers and many others should be very fearful of how the antiquated law could be used against them.  An editorial in the Washington Post makes the case for repealing the Comstock now before it can be used by the right for draconian and misogynistic purposes.  Here are excerpts:

Prudish even by the standards of the Victorian Age, Anthony Comstock ranks as one of the more bizarre and destructive figures in U.S. history. The founder of the New York Society for the Suppression of Vice in 1873, Comstock boasted of hounding women to suicide by pursuing their prosecution for selling contraceptive pills or assisting abortions. As a federal postal inspector, he once raided an art gallery selling nude paintings, including a reproduction of the “Birth of Venus,” which a court ordered seized. He saw newspapers, magazines and novels as satanic influences for promoting “evil reading” and encouraged destruction of books.

He lobbied for an 1873 federal law that makes it a felony to mail any “article or thing designed, adapted, or intended for producing abortion,” or even any advice on how or where to get an abortion or contraception. Later judicial interpretation prompted removal of the Comstock Act’s prohibition on mailing contraception, but its purported ban on abortion-related supplies is still on the books. Americans were reminded of this astonishing — and troubling — fact at Tuesday’s Supreme Court oral argument over efforts by antiabortion doctors to rescind Food and Drug Administration rules allowing the distribution of mifepristone, used for medical abortions.

During the hearing, Erin Hawley, counsel for the antiabortion doctors, claimed the FDA had ignored the “plain text” of the Comstock Act when it permanently removed a requirement women get mifepristone pills in-person last year. Ms. Hawley got apparent support in this contention from Justices Clarence Thomas and Samuel A. Alito Jr.

Though the justices seemed likely to back the FDA for other reasons, the emergence of the Comstock Act from legal dormancy could foreshadow more conservative attempts to use it against reproductive freedom — in a post-Roe world where nearly two-thirds of all abortions are now carried out by medication. It should never come to that: Congress needs to repeal the law.

Democrats should lead that effort while they still control the Senate and the White House. And they should do so despite understandable fears that trying, and failing, to repeal the law could paradoxically reinforce its validity. It’s a fight worth having. Let House Republicans refuse to consider a bill, or the Senate GOP filibuster one, and explain to voters why they oppose eliminating even the theoretical chance people could get up to five years in prison (the maximum penalty for a first offense) for shipping mifepristone. (The law also applies to express common carriers, such as FedEx and UPS.)

In fact, a number of groups and individuals on the right are trying to revive the Comstock Act. The Heritage Foundation’s Project 2025, a policy blueprint for a second Donald Trump term to which more than 100 conservative groups contributed, says a Trump Justice Department should “announce its intent to enforce federal law against providers and distributors of such [abortion] pills.”

Last month, 26 Republican senators and 199 GOP members of the House signed a friend of the court brief in the mifepristone case accusing the FDA of “blatant disregard” for the Comstock Act.

Companies and individuals are probably safe for now because a Biden appointee at the department’s Office of Legal Counsel issued an opinion in December 2022 construing the Comstock Act to allow mailing mifepristone if the sender “lacks the intent that the recipient of the drugs will use them unlawfully.” But a Justice Department under Mr. Trump could easily issue new guidance.

Mr. Trump’s Supreme Court picks were instrumental in the court’s overturning of Roe v. Wade, a fact for which the presumptive GOP nominee and his party are paying a political price. For the time being, Mr. Trump is trying to take credit with the GOP’s pro-life wing, while ducking the issue otherwise. A high-profile effort to repeal the Comstock Act could force him to say clearly where he stands. One way or the other, this obsolete, misogynist law needs to be wiped off the statute books.