A 19th-century law once used to police contraception, abortion and queer expression is finding new life in today’s Supreme Court battles over reproductive freedom.
On May 1, the New Orleans-based Fifth U.S. Circuit Court of Appeals blocked the mailing of mifepristone, a common abortion medication. (The pill is also used in miscarriage care; has shown promise in treating fibroids, endometriosis, some cancers, depression and chronic inflammatory illnesses; and is currently being studied as a once-weekly contraceptive.) Their ruling restricted distribution and use of the medication to in-person clinic visits only, even as the number of brick-and-mortar abortion clinics has continued to shutter over the past year.
Thankfully, on Thursday, May 14 (albeit 30 minutes past their self‑imposed deadline), the Supreme Court stayed the Fifth Circuit’s ruling and, pending further litigation, preserved mail‑order access to and telemedicine oversight of abortion medication.
But the Court was not unanimous. Among the dissenters, Justice Clarence Thomas explicitly invoked the Comstock Act as precedent for the Fifth Circuit’s decision, writing: “It is a criminal offense to ship mifepristone for use in abortions. The Comstock Act bans using ‘the mails’ to ship any ‘drug … for producing abortion.’” He argued that Louisiana’s claim—that mifepristone is being shipped into a state that has banned abortion—“violates the Comstock Act.”
The Comstock Act of 1873—named after the eponymous religious activist Anthony Comstock who founded the New York Society for the Suppression of Vice—restricted the distribution of contraceptives and abortion-related items, classifying them as “obscene.” After extensive lobbying from Comstock and others who sought to promote Christian morality through legislation, Congress passed the Comstock Act on March 3, 1873.
Formally titled the “Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use,” the Comstock Act never clearly defined what counted as “obscene.” Instead, enforcement often relied on the Hicklin Test, a legal standard established in Regina v. Hicklin (1868), a case out of Great Britain’s Supreme Court, which allowed authorities broad discretion to determine what material might “deprave and corrupt” the public.
Because of this subjectivity, a number of non-pornographic materials were seized under the Comstock Act, alongside mailed contraception and birth control devices and sexual health materials, and classical literature and art like Walt Whitman’s Leaves of Grass and Alexandre Cabanel’s The Birth of Venus. Police also seized a number of erotica, along with any materials referencing the LGBTQ+ community, including sapphic pulp fiction novels that provided representation for queer women in isolated and rural communities.
The Comstock Act’s reproductive restrictions disproportionately impacted poor and working-class women. Restricting access to contraception and abortion materials by mail cut off some of the cheapest—and, in many places, only—options available to pregnant people. Wealthier women could often still obtain private medical care, while poor and working-class women were pushed toward dangerous and unsafe abortions.
Today, some antiabortion activists are attempting to resurrect the Comstock Act of 1873. The law is still technically enforceable and could be used to stop the distribution of contraceptives and abortion medications and supplies through the mail and local carriers.
While Donald Trump initially pushed for the legality of abortion to be a states’ rights issue, Thomas’ dissenting opinion reveals that the possibility of a nationwide abortion ban is still very much on the table.
Even before Thomas mentioned Comstock in his dissenting opinion, antiabortion advocates have been calling for the enforcement of the law to stop access to abortion medication and contraception materials. Over the past decade, a number of 20th-century rulings, including United States v. One Package (1936), Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), substantially weakened the Comstock Act.
But Comstock remains on the books. And Thomas’ explicit invocation of it, in the context of mifepristone’s legality, sets a dangerous precedent for its legal resurrection amid modern battles criminalizing abortion medication.
The Fifth Circuit Court decision targeting mifepristone access echoes a growing number of high Court opinions that threaten established protections for marginalized communities, from the overturn of Roe v. Wade in 2022 to ongoing threats to Obergefell v. Hodges (the Supreme Court case that enshrined federal protections for and recognition of same-sex marriage).
As opposed to Comstock’s campaign for formal legislation (which some Republicans are waging again with increased anti-trans and abortion ban legislation spreading across the country), far-right Christian purists like him are turning to the Supreme Court to wage their battles.
