April 16, 1929, Boston's Ford Hall Forum, a silenced Margaret Sanger appeared on stage and handed her prepared speech to Harvard professor Arthur M. Schlesinger to read to an audience of 800.
The fire of the sleeping dragon.
Here's the text of the current version of the Comstock Act, 18 U.S.C. § 1461:
Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and–
Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and
Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and
Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and
Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and
Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing–
Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001(e) of title 39 to be nonmailable . . . shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter. . . .
I wonder what other laws are waiting to be reawakened by the sprinkling of Gilead Handmaid holy waters?
It’s almost impossible to believe the Comstock Act, passed by Congress in 1873, really is a law in our country. Among other things, it prohibits the mailing of “obscene, lewd, or lascivious” materials, like pornography, or any article or thing “intended for the prevention of conception or procuring of abortion.” It also prohibits shipping those things by way of express common carriers, meaning services like FedEx or UPS
The Comstock Act has been considered moot since the Supreme Court declared a right to contraception for married couples in Griswold v Connecticut, in 1965 (when I was 15 years old); Congress repealed the birth control portions of the law in 1971 (when my daughter was born). But the rest of the law was never formally repealed – it never had to be. OR that's what everyone thought. With the 1973 Roe v Wade decision in place, and the constitutional right to an abortion intact, the Comstock Act faded into the background like a sleeping dragon. Narrowed and gutted, but still alive.
Boy was THAT a mistake! Never think the dragon is gone if it is only sleeping.
Today, the draconian law is ready to twist its nasty over-reaching fingers back into our lives as zealot anti-abortion activists and lawyers argue before the U.S. Court of Appeals for the 5th Circuit that the Comstock Act makes it illegal to send abortion pills by mail, reasoning that the relic law “explicitly forbids” mailing the drugs to any state, whether abortion is legal there or not. If this goes forward, it will crash the availability of mifepristone, the first pill of two used in medication abortion — the method used in more than half of abortions in the country. The three judges hearing the case are Jennifer Walker Elrod, James C. Ho and Cory T. Wilson--two appointed by Trump and one by George W., all who have previously backed abortion restrictions.
DID YOU KNOW that as late as 1960 thirty states had statutes on the books prohibiting or restricting the sale and advertisement of contraception? These laws stretched back almost a century, to that accursed Comstock Act, reflecting an underlying restrictive puritan storyline that contraception was lewd, immoral and promoted promiscuity. For women, anyway.
These laws were fought tooth and nail by activist Margaret Sanger (in this photo having her mouth covered in protest at not being allowed to talk about the issue) and the brazen, determined women of the day who were arrested, jailed, and publicly humiliated. She tirelessly lobbied to overturn the law's birth control sections, which the courts partially did in United States v. One Package (2d Cir. 1936), making it legal for doctors to mail birth control devices and information.
Where is the Maggie Sanger of today? We need someone as brave and relentless to help us hold on to the precious freedoms she and her sisters helped us gain.