While his name may not be familiar to most Americans, for 40 years, between 1873 and 1915, the mutton chopped and cherubic faced Anthony Comstock was one of the more powerful and feared people in American society. The most famous moral reformer of the Gilded Age, Comstock was the founder of the New York Society for the Suppression of Vice and a special agent for the US Post Office who mounted a nationwide crusade to suppress the circulation of anything he personally found to be morally reprehensible. He often claimed he was merely performing God’s will in an ongoing war against sin.
Using an 1873 federal law that he wrote (the “Comstock Act”), he used his authority to seize objectionable material and prosecute people for transmitting “obscene” items through the US mail. Comstock went after lottery subscriptions, pornography, pulp fiction magazines, and even tracts advocating religious freethought.
Comstock’s “passion” (pun intended), however, was sex. Of all the forms of vice that he deplored and persecuted, no cause was greater for him than suppressing materials advocating free love, abortion, and contraceptives. One of his more famous victims was Walt Whitman, who he pursued for publishing Leaves of Grass. Although Comstock prosecuted actual abortion providers and distributors of contraceptives, he also pursued those who simply supplied medical information regarding abortion and contraceptives; he even went after writers of medical journals and books that provided gynecological advice.
Comstock proudly declared that over the course of his crusade, he secured the conviction of some 2600 people for facilitating access to abortion and contraceptives, as well as for purveying obscene materials. (He even boasted that he was responsible for approximately 15 suicides of people he’d investigated.) Margaret Sanger, the founder of Planned Parenthood, had to flee the country to avoid prosecution under the Comstock Act (though her husband, William Sanger, unfortunately served time in jail for publishing her birth-control pamphlet Family Limitation).
Readers can probably anticipate where this history lesson is going. Since the Supreme Court’s decision to overturn the right to abortion guaranteed in Roe v. Wade and Casey v. Planned Parenthood, red states have been rushing to criminalize most, if not all, access to abortion. At least 14 states have banned (or are in the process of banning) mifepristone, the abortion pill, and to prevent women from receiving it through the mail from blue states or internationally. (Many of these same states are seeking to prevent their residents from traveling to blue states to receive abortions or prescriptions.)
One group that will likely be targeted, Aid Access, is an international telemedicine abortion provider based in The Netherlands that uses European physicians to consult and prescribe the abortion pill (for the record, the Food and Drug Administration has approved the use of mifepristone in the United States through the 10th week of pregnancy). The abortion pill has become increasingly common in the US, with its use accounting for over 50% of all abortions in 2020, according to the Guttmacher Institute.
Both efforts by red states—the banning of interstate travel and preventing the mailing of abortion pills—face obstacles. While the Supreme Court has recognized that there’s a constitutionally protected right to travel from one state to another, that right, like the right to privacy, is not enumerated in the Constitution (so, it too could be revoked by the conservative justices). But generally, one state cannot prevent its citizens from traveling to another state to receive benefits and services there.
As for mailing abortion pills (or contraceptives, for that matter), mail delivery is under the control of the federal government, not the states (thus, the U.S. Mail). State officials have no inherent authority to inspect mail or its contents. The purchasing and shipping of goods through the mail is also a form of interstate commerce, which is regulated by the federal government, not the states.
But Congress can consent to states exercising some regulatory authority over commerce, and all it would take is for a Republican-controlled Congress to empower red states to outlaw the mailing of certain items within their borders (as is already the case federally with lottery tickets). A Republican-controlled Congress could then impose a nationwide ban on the mailing of abortion pills or certain contraceptives. (Republican-controlled state legislatures have already demonstrated a willingness to enact questionable legislation for nothing more than its intimidation factor.)
Which brings us back to Anthony Comstock. In 1878, the Supreme Court upheld a law banning the mailing of lottery tickets—and by implication the Comstock Act itself—with the opinion declaring that:
“[t]he power possessed by Congress embraces the regulation of the entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded.” (Ex parte Jackson, 1878)
The point being that precedent exists for a nationwide ban today. And Comstock’s questionable investigative methods should also be a lesson. Comstock bragged about how he entrapped those who provided contraception and abortion-related information by writing them letters posing as a woman in distress, only to have the suppliers arrested once he received the objectionable material.
So, too, legislators in red states can prohibit certain items once they’ve been received in their states and then may seek extradition of suppliers or secure warrants for their arrests if they ever set foot in their states. Regardless of how successful that may be, the specter of prosecution or its uncertainties is certain to have a chilling effect.
Throughout his career, Comstock relished his fame as a moral crusader who was doing God’s will to eradicate vice and sexual improprieties. For him, abortion and contraceptives were immoral primarily because they facilitated unrestrained sexual activity. He would undoubtedly agree with the most rigid of today’s anti-abortion legislation and would be pleased that his legacy is likely to continue as a result of the Dobbs decision. Wherever he is he must be smiling.