On Wednesday, the Supreme Court heard arguments in the case of Whole Woman’s Health vs. Hellerstedt. The justices’ decision will have major ramifications. It’s fitting timing: On this day in 1873, Congress passed the Comstock Act, which was used for decades to prevent the distribution of reliable information about contraception.
The act was the work of crusading prude and self-appointed moral enforcer Anthony Comstock, who was simply just appalled at the vice he saw everywhere in fast-changing post-Civil War America, but especially in New York City. (Turns out when you blanket a country in railroads and improve printing technology, making it easier than ever to produce and distribute reading materials, one of the things people want is wank material.)
The law specifically prohibited distribution of “obscene materials” through the mail. Comstock was also made a postal inspector, charged with enforcement. That’s what Congress was doing with its time circa 1873 instead of making Reconstruction stick, I guess. (Though, to be fair to Comstock, he also had it out for scams and fraudsters.)
The legislation didn’t just target pornography, though. As PBS recounts, Comstock was appalled by ads for birth control, as well, and thought contraceptives in general would put another tear in the nation’s moral fabric. And so the act classified anything to do with birth control as “obscene,” and the law was used like a cudgel against anyone who dared attempt to improve access to contraception. You couldn’t mail out condoms, information about abortifacients, even a pamphlet about diaphragms without risking legal trouble. Hence arrest after arrest for activists like Margaret Sanger. Even doctors who just wanted to provide their patients with knowledge faced an uphill battle.
It wasn’t until 1936 that the Supreme Court’s ruling in United States v. One Package of Japanese Pessaries gutted the Comstock Act’s provisions against birth control.
The parallel with the TRAP laws whose fate will be decided by Whole Woman’s Health vs. Hellerstedt is clear. You don’t need to ban something wholesale to choke off access—all you have to do is raise holy hell about the postal system, or institute countless unnecessary rules that kill clinics with a thousand small cuts. It’s just more Comstockery, and it works. And it’ll keep working unless the Supreme Court puts a stop to it.
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Illustration from Comstock’s Frauds Exposed: How the People Are Deceived and Robbed, and the Youth Corrupted, via the Internet Archive.