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A 19th-Century Obscenity Law Is Being Used Again to Limit Abortion

Recent rulings on the abortion pill cite the Comstock Act, a 150-year-old law that’s still on the books

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Science, Quickly

Tanya Lewis: Hi, and welcome to Your Health, Quickly, a 鶹ýAV podcast series!

Josh Fischman: On this show, we highlight the latest vital health news, discoveries that affect your body and your mind.  

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Lewis: And we demystify the medical research in ways you can use to stay healthy. 

I’m Tanya Lewis.

Fischman: I’m Josh Fischman.

Lewis: We’re 鶹ýAV’s senior health editors. 

Fishman: On the show today, we’re talking about an obscure 19th-century obscenity law. It’s given rise to the recent court rulings that attempt to restrict access to the abortion pill mifepristone.

[Clip: Show theme music]

Lewis: April was a busy month for the fight to roll back reproductive rights.

First, a district judge in Texas issued a ruling that would’ve removed the abortion pill mifepristone from the market. It’s used in more than half of abortions in the U.S., and it’s also used for miscarriage treatment. The Supreme Court has blocked the ruling for now.

[Clip: ABC 7 Chicago news report]

Reporter: Mifepristone, known as the abortion pill, gets a temporary lifeline from the U.S. Supreme Court. Justices need more time to weigh in on whether the drug should remain widely available or roll back restrictions placed on Mifepristone when it was approved more than 20 years ago.

In the district court case, Trump-appointed judge Matthew Kacsmaryk ruled in favor of anti-abortion activists and doctors, who argued that the Food and Drug Administration did not adequately address the safety risks when it approved the drug more than 20 years ago.

Fischman: But that’s not true, is it? I’ve seen dozens of studies about the pill’s safety.

Lewis: Right - a wealth of research shows it is extremely safe and effective—studies show that more than have no serious complications.

Fischman: Just a few hours after the Texas ruling, Thomas Rice, a district judge in Washington State appointed by Barack Obama, issued a competing ruling.

That one ordered the FDA to do nothing to restrict mifepristone access where abortion is currently legal. And that includes 17 states and Washington, D.C.

Lewis: The Department of Justice and Danco Laboratories, the company that manufactures mifepristone, appealed the Texas decision to the Fifth Circuit Court of Appeals.

That court issued a stay on the ruling until the case could be fully heard, but imposed certain restrictions on the drug that had been in place before 2016.

Fischman: Restrictions like what?

Lewis: Like banning people from sending mifepristone by mail—but more on that in a sec.

So after all this back-and-forth, the Supreme Court weighed in on April 21. It issued a hold on both the Texas and Fifth Circuit rulings, restoring full access to mifepristone while the Fifth Circuit appeal proceeds later this month. And that’s where things stand now.

Fischman: I’m having trouble following the legal logic of all this.  What was the original Texas ruling based on? We already talked about mifepristone’s good safety record, and medication abortion has been legal for decades.

Lewis: That’s a great question. The plaintiffs in the Texas case argued that mifepristone—which is part of a two-drug regimen along with the drug misoprostol—could cause serious complications in people who took it.

But dozens of studies have shown that the drug combo causes fewer side effects than many other FDA-approved medications, including Tylenol and Viagra. 

Fischman: Interesting that the Texas doctors were more concerned about mifepristone than Viagra. But okay, the abortion pill is quite safe. What about the Fifth Circuit ruling that said that mifepristone shouldn’t be sent by mail? Where did that come from?

Lewis: I’m glad you asked. Both the Fifth Circuit ruling and the original Texas decision cited a law from 1873 called the Comstock Act, which forbids the mailing of “obscene, lewd or lascivious” materials.

Annalee Newitz: It's named after a guy named Anthony Comstock, who was a very famous moral crusader based in New York in the mid-19th century. His career started mostly because he was interested in stamping out obscenity.

Lewis: That’s Annalee Newitz, an author and science journalist. They wrote a sci-fi novel called “The Future of Another Timeline.” It’s about a group of feminists who travel back in time to stop Comstock’s misogynistic anti-obscenity crusade.

For a recent story on Sciam.com, I spoke with Newitz about Comstock, and how his law is still being used to restrict reproductive rights.

Newitz: It just forbids the sending of obscene materials through the mail … of course, he was targeting very specific people, people who were known to be selling the raw material, but also more importantly, people who were selling any kind of information that was sex education related, not obscene, like just literally things like ‘here's how to make a baby’ for people who are getting married, and also information about birth control and abortion.

Lewis: The law was based on the first amendment’s exception for obscenity, which is not protected as free speech.

Of course, keep in mind that the definition of obscenity back then was pretty vague. It included anything related to reproductive health, abortion or sex education.

Congress actually created a new position for Comstock as a special agent of the U.S. postal service, where he had the power to arrest people for obscenity violations.

Newitz: He also had kind of an army of deputized suppressors of vice, this organization called the New York Society for the Suppression of Vice, which just sounds like something out of, like, a Marvel comic. They would figure out who was, you know, an abortion provider and break in.

Lewis: And Comstock and his deputies were pretty brutal.

Newitz: they would know that the person was in the midst of doing an abortion, they would break into their house during the abortion and drag them to the police station like, bleeding, and leave them on the floor to make a point.

Fischman: They really did that? That’s just terrifying. And dangerous! A patient could die. 

Lewis: Absolutely. It was pretty barbaric.

Comstock also went after art and literature that he considered obscene.

Newitz: Comstock tried to shut down the Chicago World's Fair, because they were putting belly dancers out as one of the many, many acts that you could go see, and he thought belly dancing was obscene. 

Lewis: In 1905, Playwright George Bernard Shaw in the New York Times making fun of America’s “Comstockery”—a term he used to refer to its censorious attitude toward art and literature.

Fischman: Shaw was actually firing back at a public library that put his plays on a restricted reading list. “Comstockery,” he wrote, “is the world’s standing joke.” “If I had the misfortune to be a citizen of the United States I should probably have my property confiscated by some postal official, and be myself imprisoned.”

Comstockery is a great term. I’m going to start using it.

Lewis: I know, right? But even though Comstock himself became kind of a joke, the act and similar laws enacted by states stayed on the books.

In the 1960s and 70s, the Supreme Court issued several key rulings that restricted the definition of obscenity. As Justice Potter Stewart famously said in the 1964 case Jacobellis v. Ohio, when asked to define obscenity…

[Clip: Justice Potter Stewart]

Stewart: I know it when I see it.

Lewis: And in 1973, you had Roe v. Wade, which basically said abortion is legal because of a constitutional right to privacy, not because abortion itself was protected.

Newitz: Pretty much every lawyer I've heard talk about this…who's, you know, sort of knowledgeable about reproductive rights is like, “Why the hell did we do that?” That was such a precarious ruling—so easy to roll back.

Fischman: And that’s exactly what happened when the Dobbs decision came last summer.  That one overturned Roe v. Wade, paving the way for many states to ban or severely restrict abortion.

Lewis: Exactly. And all this time, we never actually repealed the provisions of the Comstock Act having to do with sending abortion medication by mail. So the Texas mifepristone ruling and the Fifth Circuit stay have used the law as justification for attempting to restrict the abortion pill’s distribution.

Fischman: So what happens next?

Lewis: The Fifth Circuit Appeals Court has scheduled a hearing for May 17.

But the case is almost certainly headed back to the Supreme Court, where justices will likely have to wrestle with the legacy of Comstock yet again.

Fischman: Well, I guess we’ll see if Comstockery holds up in the 21st century.

[Clip: Show theme music]

Fischman: Your Health Quickly is produced and edited by Tulika Bose, Jeff DelViscio, Kelso Harper, and Elah Feder. Our music is composed by Dominic Smith.

Lewis: Our show is a part of 鶹ýAV’s podcast, Science, Quickly. You can subscribe wherever you get your podcasts. And if you like the show, give us a rating or review!

Fischman: And don’t forget to go to Sciam.com for updated and in-depth health news. 

Lewis: I’m Tanya Lewis.

Fischman: I’m Josh Fischman.

Lewis: We’ll be back in two weeks. Thanks for listening!

Josh Fischman is a senior editor at 鶹ýAV who covers medicine, biology and science policy. He has written and edited about science and health for Discover, Science,Earth, and U.S. News & World Report.
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Tanya Lewis is a senior editor covering health and medicine at 鶹ýAV. She writes and edits stories for the website and print magazine on topics ranging from 鶹ýAV to organ transplants. She also co-hosts Your Health, Quickly on 鶹ýAV's podcast Science, Quickly and writes 鶹ýAV's weekly Health & Biology newsletter. She has held a number of positions over her seven years at 鶹ýAV, including health editor, assistant news editor and associate editor at 鶹ýAV Mind. Previously, she has written for outlets that include Insider, Wired, Science News, and others. She has a degree in biomedical engineering from Brown University and one in science communication from the University of California, Santa Cruz.
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A 19th-Century Obscenity Law Is Being Used Again to Limit Abortion