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What Is the Comstock Act? Texas Judge Cites 1873 Anti-Obscenity Law to Halt Approval of Abortion Pill

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When U.S. District Judge Matthew Kacsmaryk ruled Friday the Food and Drug Administration’s two-decade old approval of the leading abortion drug mifepristone violates the law, he cited the 19th century Comstock Act, a so-called anti-vice law that prohibits the mailing of contraceptives and instruments or drugs that can be used in an abortion. It has been dormant for half a century. We speak to Lauren MacIvor Thompson, a historian of birth control, about the Comstock Act and its legacy.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.

When the U.S. district judge, the federal judge, Matthew Kacsmaryk, ruled Friday in Texas that the Food and Drug Administration’s 23-year-old approval of the leading abortion drug mifepristone violates the law, he cited the 1873 Comstock Act. The so-called anti-vice law prohibits the mailing or distribution of, quote, “obscene materials” and has been dormant for half a century.

After the Supreme Court overturned Roe v. Wade and the 50-year-old federal right to abortion in its Dobbs decision last year, the Justice Department issued a memorandum that said the Comstock Act does not prohibit the mailing of such drugs as mifepristone. But in his ruling, the Trump-appointed anti-abortion judge, Kacsmaryk, agrees with plaintiffs in the case that the law does in fact prohibit mailing the drug.

For more, we’re joined by Lauren MacIvor Thompson, historian of birth control, specialist in specifically the Comstock Act.

Lauren MacIvor Thompson, if you can explain what this ruling is he invoked from eighteen — from the 19th century, eighteen seventy — what was it? — nine — 1873?

LAUREN MacIVOR THOMPSON: Yeah, 1873. You’re right. So, yeah, this, as a historian, when I read the opinion on Friday afternoon, I was just kind of gobsmacked, although I guess we shouldn’t be surprised, as Jessica and Alexis already pointed out. The Comstock Act of 1873 was the product of a vice reformer, Anthony Comstock, who lobbied Congress in 1873, and the law was passed in March of 1873, so we’re looking at 150 years now just last month. And the law essentially criminalized anything having to do with sex at the federal level, and that included instruments that could be used for the prevention of conception or to procure abortion. And so, for the judge to raise the Comstock law from the dead, essentially, as a viable legal strategy in order to achieve a ban on medication abortion, you know, as a historian, I just really saw us kind of coming full circle, and not in a good way.

AMY GOODMAN: And talk more about this. And talk more about who Comstock was and what this means about where this country is going.

LAUREN MacIVOR THOMPSON: Yeah, that’s such a good question, because I think we do have to look at Anthony Comstock specifically as a person. It illustrates, in many ways, how one person can have a really outsize impact on our democracy. Comstock served in the Union Army, where he was really scandalized by the amount of alcohol, pornography, you know, that his fellow soldiers were taking advantage of during the Civil War. And after the war, he went to New York, where he aligned himself with the Young Men’s Christian Association, and he started a sort of offshoot of that group called the New York Society for the Suppression of Vice. And at that point, he actually went — he was funded to go down to Washington, D.C., and to lobby Congress for this obscenity law. And he was just obsessed with sex, and he was able to get the senators and representatives at the time on board. And it was one of the quickest laws that has ever been passed in American history. There was really, really no opposition to it.

AMY GOODMAN: Um —

LAUREN MacIVOR THOMPSON: And so — yes?

AMY GOODMAN: I was just going to say, Michelle Goldberg writes in The New York Times, “the Comstock Act, the notorious anti-obscenity law used to indict the Planned Parenthood founder Margaret Sanger, ban books by D.H. Lawrence and arrest people by the thousands,” turning 150 last month.

LAUREN MacIVOR THOMPSON: Yes. This was a law with teeth. There were steep fines for violating the Comstock Act. Certainly, you could be sentenced to hard labor. You could be sentenced to years in prison. And this really ensnared ordinary Americans in this kind of vast anti-obscenity legal regime. And it’s one of those things where, you know, when you look at it as a whole, it was absolutely a violation of the Constitution. And it wasn’t until the 1920s that there were cases that began to kind of chip away — First Amendment cases that began to chip away at the Comstock Act. But, really, it was one of those laws that — at the federal law level, that just kind of increased and expanded an already existing anti-abortion legal regime, because there had been state laws existing for 30 or 40 years before that, before the Comstock Act was passed.

AMY GOODMAN: We always talk about resistance. And in 2019, you wrote a piece in the Times, “Women Have Always Had Abortions.” You talk about the 17th and 18th centuries, abortion legal under common law before “quickening,” or when the pregnant woman could feel the fetus move, beginning around 16 weeks. You write later, “Beginning in the 1850s, however, the crusade against abortion began in earnest.” This fascinating history, relay it.

LAUREN MacIVOR THOMPSON: Yeah. So, there were — there’s actually no laws about abortion at all until the — beginning in the 1830s and 1840s. But in the 1850s, particularly with the sort of spearheading of the American Medical Association, physicians in this country began to work with legislators — white physicians, white legislators began to work together to criminalize abortion, essentially by 1900 in every state in the union. And so, what you had was a statewide network of anti-abortion and anti-contraception laws. And then, layered on top of that, by 1873, you have the Comstock Act.

So, somebody seeking to abort a pregnancy or to prevent conception — and, by the way, there were — you know, reproductive control items were everywhere in America in the 19th century. You could order barrier methods from any kind of mail order catalog or obtain them at the pharmacy. Women were managing their fertility at home with these things. But to do so was risking a legal arrest. I mean, it was a dangerous prospect to do so because of the legal regime that gets put into place at both the federal and the state levels.

AMY GOODMAN: And finally, Kacsmaryk’s language, not only talking, of course, about the Comstock Act, but referring to fetuses as “unborn humans”?

LAUREN MacIVOR THOMPSON: Yes. So, what’s really kind of interesting about that, if “interesting” is the word, is that, you know, the anti-abortion movement’s emphasis on fetal personhood these days, that’s been around since the 1960s. It’s kind of decades old. But originally the passage of abortion laws and the Comstock Act were really not focused on the idea that the fetus was a person. These laws were rooted in anti-immigrant sentiment, eugenics sentiment, the idea that not enough white middle-class women were having babies, because they were the ones seeking contraception and abortion. And so, physicians, although they kind of paid lip service to the idea that abortion was murder, they were really kind of — if you look at it in terms of a pie, that was just kind of one piece of the pie. The other pieces of the pie included misogyny, racism and eugenics sentiment.

So, for this kind of invocation of the fetus as a person, you know, that’s something that is different than it was in the 19th century. And I think what the Comstock Act, reviving that, might achieve is it’s going to, essentially, if it goes — if this kind of decision goes through and carries forward, we’re going to end up seeing a sort of nationwide ban on abortion through the Comstock Act, rather than trying to convince the rest of America that fetal personhood and the 14th Amendment and the rights of a fetus, you know, should ban abortion nationwide. So, they may not have to go down that path if they can ban abortion nationwide through the Comstock Act.

AMY GOODMAN: Lauren MacIvor Thompson, I want to thank you for being with us, historian of birth control —

LAUREN MacIVOR THOMPSON: Thank you.

AMY GOODMAN: — assistant professor at Kennesaw State and fellow at Georgia State Law, speaking to us from Atlanta, Georgia.

Next up, we’ll talk with two women, one the co-founder of the Miscarriage and Abortion Hotline, who deals with access to abortion pills, and we’ll speak to the head of the only independent abortion clinic in Arizona. Stay with us.

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