WASHINGTON (AP) — In the ongoing debate over expanded access to the abortion pill, mifepristone, the applicability of the Comstock Act has emerged as a chilling concern for advocates of free speech. This 151-year-old law was originally intended to ban the mailing of materials deemed “obscene, lewd, [or] lascivious,” including contraception and pornography. However, the Act’s connection to the availability of mifepristone is hotly contested and unlikely to gain traction in the Supreme Court. Justices Clarence Thomas and Samuel Alito, while outliers on this issue, have raised the Act’s relevance in the recent oral arguments.
The Comstock Act is a longstanding symbol of intolerance and an attack on free speech principles. It reflects the ideology of Anthony Comstock, a widely disliked figure known for his rigid moral views. Comstock spearheaded the New York Society for the Suppression of Vice, targeting everything from lascivious lifestyles to feminism to contraception. His controversial tactics included imprisoning women like Victoria Claflin Woodhull and her sister, Tennessee “Tennie” Claflin, who dared to challenge social and gender barriers.
Despite its outdated and oppressive nature, the Comstock Act remains intact in our federal code, largely due to lawmakers’ reluctance to repeal a law that was designed to censor obscene material. However, there are already plenty of laws in place to criminalize the transmission of child pornography, and the Justice Department has indicated that the Comstock Act should only be enforced when intent to use the material for unlawful purposes can be proven. Furthermore, harmful or threatening material can be addressed through other criminal or civil actions.
Efforts to repeal the Comstock Act have gained support from some Democratic members of Congress, such as Rep. Cori Bush of Missouri. However, for the free speech community, these members are seen as uncertain allies, given their past support for censorship and blacklisting of those accused of spreading false information. Nonetheless, the free speech community is accustomed to fleeting alliances that ebb and flow with the political landscape.
While the repeal of the Comstock Act may not directly impact the ongoing legal battles surrounding the abortion pill or related issues, it would serve as a symbolic closure to a dark chapter in our history. The Act epitomizes a period when dissenters were silenced, isolated, and imprisoned for expressing their views. The real indecency lies in the fact that Congress ever enacted such a law.
The question remains whether our current leaders will have the courage to prioritize liberty over zealotry and finally repeal the Comstock Act.