Comstock Antiobscenity Law

The Comstock Law amended US postal regulations and banned the use of the mail to advertise, publish, or sell sexually suggestive material, including information about contraception and abortion. The law had the effect of severely impeding the dissemination of birth-control information.

DATE: March 3, 1873

LOCALE: United States

ALSO KNOWN AS: Federal Anti-Obscenity Act; Comstock Act

Key Figures

• Anthony Comstock (1844–1915), social reformer and author of the Comstock Law
• Jacob Collamer (1791–1865), Vermont senator and author of the 1865 Postal Act
• Margaret Sanger (1879–1966), nurse, author, and founder of the American Birth Control League

Summary of Event

On March 3, 1873, the US Congress passed a bill that led to the Comstock Law, which amended the 1865 Postal Act. The 1865 act had made it a crime to send “publication[s] of a vulgar or indecent character” through the mail. The Comstock Law strengthened these restrictions, establishing special antiobscenity agents with the power to seize material deemed obscene by law.

The Comstock Law stipulated that for the first obscenity offense, offenders found guilty could be sentenced for a term of up to five years in prison or fined up to two thousand dollar, well over a year’s salary for most individuals at the time. The definition of “obscenity,” always a matter of subjective judgment, came to be regarded as any sexually suggestive material that made reference to what nineteenth-century Victorian American society regarded as lewd or lascivious.

In effect, the Comstock Law criminalized not only the distribution of contraceptives through the US postal system but also information on contraceptives and abortion through the mail. The stated purpose of the law was to prevent the circulation of pornography, and its supporters argued about the “immorality” of birth control. The argument on birth control was also tied to women’s rights, eugenics, Malthusianism, neo-Malthusianism, Christian morality, and the growing power of the Catholic Church.

The nineteenth century, powered by industrialization and immigration, was a time of profound social change. Social theories that had gestated in England were transplanted to the United States, where they affected attitudes and laws on social and personal morality. The neo-Malthusian writings of Robert Dale Owen in the United States emphasized that the fundamental problem of poverty was not overpopulation but maldistribution of wealth and the oppression of the poor.

Malthusian theories evolved later in the century into the pseudoscientific but popular concept of eugenics, which advocated methods for curtailing population growth among the poor and working classes while encouraging more births to middle- and upper-class families. Eugenics influenced John Humphrey Noyes, a follower of “perfectionism” and founder of the socialist utopian colony at Oneida, New York, in 1848. Noyes advocated that contraception should not be mechanical but should instead consist of self-control on the part of the male partner. He also attempted to practice eugenics through the process of choosing partners who were to create children.

Free-love advocates, along with a growing women’s movement in the United States, which had begun during the 1840s, supported “voluntary motherhood.” Voluntary motherhood recognized the import of female sexuality and a woman’s right to control her own reproduction. Advocates adopted either Noyes’s concept of male self-control or the right of a woman to insist on abstinence. Both movements opposed “mechanical” methods of contraception, fearing that these methods would encourage promiscuity and provide a means whereby men could exploit and even rape women with impunity.

During the same period, White, middle-class women were getting abortions at increasing rates. As tolerance for abortion increased, physicians moved to establish a monopoly over women’s reproduction and to diminish the use of midwives and herbalists. Consequently, between 1860 and 1880, every state had enacted laws stipulating that abortion could be performed by physicians only, and only when the pregnant woman’s life was in danger. Some historians see these developments as constituting a backlash against women’s search for greater reproductive power and, therefore, freedom.

Congress acted on this matter in 1842, when it passed a tariff act authorizing customs officials to seize “obscene” or “immoral” imported prints and pictures. This act thereby implied that pornography was a foreign, primarily European, phenomenon. By the 1860s there had been a brisk domestic trade in domestically produced photographs, pamphlets, and novels. Soldiers during the U.S. Civil War (1861-1865) made use of the mail system to order this material, much of it originating in New York City.

In 1865, at the behest of Senator Jacob Collamer of Vermont, a former postmaster general, Congress had passed a law making the mailing of any “obscene book, pamphlet, picture, print or other publication” of “vulgar and indecent character” a misdemeanor punishable by a fine or imprisonment or both. In 1872, Congress had strengthened the law by adding envelopes and postcards to the prohibited list.

It was in this social atmosphere that Anthony Comstock came of age. Comstock had been born in New Canaan, Connecticut, in 1844, the son of a prosperous farmer and a devout Congregationalist mother. He had joined the Christian Commission during the Civil War and campaigned against tobacco, alcohol, gambling, and atheism. After the war, he had moved to New York City and joined the Young Men’s Christian Association (YMCA). Through the YMCA, he met like-minded but wealthier men, who employed him full time as an agent for the newly formed New York Society for the Suppression of Vice, headed by Samuel Colgate.

In 1872, while still in his twenties, Comstock wrote the first of two books, with a telling, lengthy title: Frauds Exposed: Or, How the People Are Deceived and Robbed, and Youth Corrupted, Being a Full Exposure of Various Schemes Operated Through the Mails, and Unearthed by the Author in a Seven Years’ Service as a Special Agent of the Post Office Department and Secretary and Chief Agent of the New York Society for the Suppression of Vice (1880). In this book he characterized his view of the problem: a systemized business, newspapers teeming with their advertisements, inadequate laws, and public sentiment “worse than dead.” Incensed by his failure to prosecute Victoria Woodhull and her sister Tennessee Claflin for their publication Woodhull and Claflin’s Weekly because newspapers were exempt from pornography laws, Comstock traveled to Washington, DC, to start lobbying for a stronger law at the federal level.

The following year, 1873, Congress passed the Comstock Act, which classified as obscene all physical instruments, visual images, and written material pertaining to contraception or abortion. Additionally, President Ulysses S. Grant appointed Comstock a “special agent” of the US Post Office empowered to enforce the new law through mail inspection. After his first year on the job, he boasted of having destroyed hundreds of thousands of obscene pictures, tons of sexually suggestive books, and thousands of condoms and supposed aphrodisiacs. Between 1873 and 1880, Comstock arrested more than fifty-five abortion providers, many business owners advertising birth control, and many persons supplying contraceptives.

However, judges, juries, and prosecutors were lenient in their rulings and findings. Various types of contraceptives—from herbs and vaginal douches to crude condoms and “pessaries” (diaphragms)—had been marketed through newspapers and magazines since the 1830s. Ironically, Samuel Colgate’s company (now known for toothpaste and other toiletries) began a newspaper campaign that spoke about the contraceptive benefits of its new product, Vaseline.

Significance

In response to the passage of the Comstock Law, twenty-four states enacted “mini-Comstock” laws. Publishers grew fearful of running afoul of Comstock, leading to media self-censorship. Perhaps most important, however, was the impact of the law on women’s rights advocates who attempted to mail information about birth control.

One famous advocate was Margaret Sanger, who is often credited as the mother of birth control in the United States. She was, however, preceded by several women who distributed birth-control remedies. Sanger, who opened the first birth-control clinic in the United States in 1916, saw her mother die at the age of fifty, after she had given birth to eleven children. Sanger later became a nurse and a socialist, working with poor, working-class women in the Lower East Side of New York City. She saw the despair of women living in poverty who had to give birth to children they did not want and could not support. She was unable to save those who would die from self-inflicted abortions.

By 1912, Sanger would give up nursing to devote herself full-time to providing birth-control information, which violated the Comstock Law. She was initially indicted on nine counts. The day before her trial, she managed to leave the country under an assumed name (Bertha Watson) and traveled to Great Britain, where she met Marie Scopes, who was doing similar work. The following year, Sanger was arrested once again and sent to a workhouse after being found guilty of creating a “public nuisance.” In 1917, she formed the American Birth Control League (ABCL), which supported doctors in disseminating contraceptives “to prevent disease.” In 1948, the ABCL became the Planned Parenthood Federation of America (PPFA).

In 1938, sixty-five years after the passage of the Comstock Law, the Supreme Court ruled that contraceptives were presumed not to be obscene unless proved otherwise—the understanding being that doctors would prescribe them only for moral purposes, that is, within the bounds of marriage. Family planning now had meaning on two levels: as the personal choice of families and as social planning to limit rates of population growth.

In 1961, the PPFA took the fight to the state that had the most reactionary law: Connecticut, where contraceptives and information about them was still illegal, for married as well as unmarried couples. Connecticut authorities arrested the clinic director, and in the resulting case of Griswold v. Connecticut, the US Supreme Court ruled the law unconstitutional because it interfered with the right of privacy of married couples. In 1977 the last vestige of state Comstock laws was invalidated in Carey v. Population Services International, which limited distribution and sale of contraceptives to minors.

With the legal protection of the right to an abortion solidified by the 1973 Roe v. Wade ruling, the Comstock Law, though still not fully repealed, had not been cited or enforced for decades and was largely seen as legally invalidated. However, some conservatives began referring to the Comstock Law again after the federal Food and Drug Administration (FDA) modified its rules in 2021 pertaining to the common abortion pill mifepristone to make it accessible through the mail. Additionally, the US Supreme Court overturned Roe v. Wade in the summer of 2022.

In a lawsuit filed in late 2022, plaintiffs contended that the FDA should not have approved the drug in the first place and that its accessibility protocol changes were not lawful. The case went through lower federal courts, including on appeal, with some justices and conservative commentators pointing to the most recent FDA rule change as a direct violation of the Comstock Law. Though a 2022 memorandum indicated that the Justice Department did not view the Comstock Law as applicable in cases where the drug is mailed under legal intent, debates over the issue continued. By early 2024, the Supreme Court had begun holding hearings on the aspects of the case pertaining to the accessibility of the drug. Many noted that Justices Samuel Alito and Clarence Thomas brought up the law during the hearings. Related discussions included concerns about what potential revived, broader applications of the Comstock Law could mean for abortion rights.

Bibliography

Beisel, Nicola Kay. Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America. Princeton, N.J.: Princeton University Press, 1997.

Boyer, Paul S. Purity in Print: The Vice-Society Movement and Book Censorship in America. New York: Scribner, 1968.

Brodie, Janet Farrell. Contraception and Abortion in Nineteenth-Century America. Ithaca: Cornell University Press, 1994.

Gordon, Linda. The Moral Property of Women: A History of Birth Control Politics in America. Urbana: University of Illinois Press, 2002.

McBride-Stetson, Dorothy. Women’s Rights in the USA: Policy Debates and Gender Roles. New York: Routledge, 2004.

Mackey, Thomas C. Pornography on Trial: A Handbook with Cases, Laws, and Documents. Santa Barbara, Calif.: ABC-Clio, 2002.

Shapiro, Thomas M. Population Control Politics: Women, Sterilization, and Reproductive Choice. Philadelphia: Temple University Press, 1985.

Sneed, Tierney. "Supreme Court Abortion Case Brings 19th Century Chastity Law to the Forefront." CNN, 29 Mar. 2024, www.cnn.com/2024/03/29/politics/comstock-act-alito-thomas-abortion/index.html. Accessed 18 Apr. 2024.

Tone, Andrea. Controlling Reproduction: An American History. Wilmington, Del.: SR Books, 1997.

Tone, Andrea. Devices and Desires: A History of Contraceptives in America. New York: Hill & Wang, 2001.

Wexler, Ellen. "The 150-Year-Old Comstock Act Could Transform the Abortion Debate." Smithsonian Magazine, 15 June 2023, www.smithsonianmag.com/history/comstock-act-transform-abortion-debate-180982363/. Accessed 18 Apr. 2024.