The Comstock Act of 1873 and an Old Law Back in the Abortion Fight

Anthony Comstock arrived in Washington in the winter of 1873 carrying a display of what he considered filth. He was a dry-goods clerk from New York in his late twenties, a Union Army veteran from Connecticut, and a man of absolute moral certainty, and he had come to lobby Congress with a collection of erotic books, pictures and devices he had seized or bought in his private crusade against vice. Among the items, by his own account, were articles for preventing conception. Congress moved with unusual speed. On March 3, 1873, President Ulysses S. Grant signed a law that made it a federal crime to send through the mail any obscene material, and, specifically, any article or information for preventing conception or producing abortion. Comstock was made a special agent of the Post Office, with power to enforce it. He held that role for decades. He died in 1915. His law did not.

In short: The Comstock Act of 1873 banned mailing obscene material and anything meant for contraception or abortion. Congress removed the contraception language in 1971 and courts narrowed the rest, but the abortion provisions remain in federal law, and since Roe fell some abortion opponents have argued they could be used to stop abortion pills from being mailed anywhere in the country.

One man and a federal badge

It is hard to exaggerate how personal the Comstock Act was. It carried his name in popular usage from the start, and he spent the rest of his life enforcing it, often in person. As a postal inspector and leader of the New York Society for the Suppression of Vice, he set traps through the mail, arrested publishers, booksellers, doctors and pamphleteers, and boasted of the tonnage of material he destroyed.

His most famous target was Ann Lohman, known professionally as Madame Restell, who for decades had sold contraceptives and performed abortions in New York and grown rich doing it. In 1878 Comstock posed as a customer seeking help for his wife, gathered evidence, and arrested her. Before her trial, she died by suicide in her Fifth Avenue home. Comstock was not troubled by the outcome. Other targets included free-love advocates, sex educators and writers of marriage manuals whose work would today sit on the shelf of any public library.

Many states passed their own versions, known as little Comstock laws, some stricter than the federal one. Connecticut banned the use of contraceptives even by married couples, a law that stood until the Supreme Court struck it down in Griswold v. Connecticut in 1965. For nearly a century, the legal architecture Comstock built shaped what doctors could tell patients and what married couples could buy.

How courts and Congress shrank it

The federal law was never formally repealed in full. It was worn down. A key moment came in 1936, when a federal appeals court in New York decided a case known as United States v. One Package. A shipment of diaphragms had been mailed from Japan to a New York doctor and seized. The court ruled that the law should not be read to stop doctors from importing contraceptives for legitimate medical use, reasoning that Congress in 1873 could not have meant to ban items that later medical knowledge showed to be useful for health. That case was quietly backed by Margaret Sanger's movement, which had spent years trying to break the law's grip on medicine.

Other courts followed similar reasoning, holding that the law applied only when the sender intended the items to be used unlawfully. In 1971, Congress struck the contraception language from the statute. The abortion language stayed. Through the Roe era, from 1973 to 2022, it mattered little: if abortion was constitutionally protected, a federal ban on mailing abortion-related items could hardly be enforced against lawful care.

Why it came back

After the Supreme Court overruled Roe in June 2022, the statute's possible reach changed overnight, and some legal activists noticed. The abortion provisions, now codified in sections 1461 and 1462 of Title 18 of the U.S. Code, still bar mailing or shipping by common carrier any article or drug intended for producing abortion. Read literally, and without the narrowing interpretation courts had developed, that language could reach mifepristone and misoprostol, the two-drug regimen that now accounts for a majority of abortions in the United States.

The Food and Drug Administration approved mifepristone in 2000. In 2021, during the pandemic, it allowed the drug to be prescribed by telehealth and sent by mail, and it later made that change permanent. Mail delivery means a patient in a state where abortion is legal can get pills without travelling to a clinic, and, through providers working under state shield laws, patients in some states with bans have received pills as well.

In December 2022, the Justice Department's Office of Legal Counsel issued an opinion concluding that the Comstock Act does not prohibit mailing these drugs when the sender lacks intent that the recipient use them unlawfully, noting that there are many lawful uses and that mifepristone is also used in miscarriage care. That opinion follows the long line of court rulings narrowing the statute. But an Office of Legal Counsel opinion is the executive branch's reading of a law, not a court ruling, and any administration can revisit it.

The Comstock theory in court

The theory has already appeared in litigation. In April 2023, Judge Matthew Kacsmaryk of the Northern District of Texas, ruling in a case brought by anti-abortion doctors against the FDA, discussed the Comstock Act at length and suggested its plain language barred mailing the pills. The Supreme Court ultimately threw out that challenge in June 2024, in FDA v. Alliance for Hippocratic Medicine, ruling unanimously that the doctors who sued lacked standing. It did not reach Comstock. During oral argument, however, Justices Samuel Alito and Clarence Thomas each asked about the statute, a signal to many observers that at least some members of the Court were open to the theory.

Separately, the policy blueprint known as Project 2025, assembled by conservative groups before the 2024 election, called for enforcing the Comstock Act against abortion pills. During the 2024 campaign, President Trump indicated that he did not intend to use it that way. As of this writing, the important question is whether the executive branch's reading changes, and whether courts would accept a revived reading of a statute that judges have narrowed for almost ninety years.

The fairest case for the revival, and the answer

The argument for reviving Comstock is textual, and it has a certain appeal to anyone who prizes reading statutes as written. The words are on the books. Congress could have repealed the abortion language when it repealed the contraception language in 1971. It chose not to. If judges are supposed to apply laws as enacted, not as they would prefer, then the statute means what it says, and the narrowing decisions were judges substituting their own views.

The answer comes from the same tradition. Statutes are read against the background of how courts have long interpreted them, and when Congress amends a law repeatedly while leaving a settled judicial construction in place, it is fair to conclude that Congress accepted it. Congress revisited the Comstock provisions several times in the twentieth century without disturbing the intent requirement courts had read into them. More fundamentally, reviving the literal reading would do something no Congress has voted to do in modern times: impose a nationwide ban on a common method of abortion, including in states where voters and legislatures have chosen to protect abortion. That is a large change to make through a dormant law rather than a vote.

There is also an irony worth naming. The same statute, read literally, once barred contraceptives too. Those who want it enforced to the letter on abortion are relying on a narrowing process, the one that limited the contraception language before Congress removed it, whenever it suits them and rejecting it when it does not.

States, shields and the next round

Since 2023, several states have passed shield laws designed to protect doctors who prescribe abortion pills by telehealth to patients in other states. Those laws are now being tested. Officials in Texas and Louisiana have pursued a New York doctor accused of prescribing pills to patients in their states, setting up a clash between state shield laws and other states' bans. A revived Comstock Act would cut through all of it at the federal level, because federal criminal law applies everywhere regardless of state protections.

That is why progressives who care about reproductive rights increasingly argue for Congress to repeal the abortion provisions of the Comstock Act outright. It is a fair thing to ask of a new Congress. It is also fair to admit that, for decades, few people outside a small circle of historians paid attention to this law, and that abortion-rights advocates assumed it was a dead letter. Old laws stay on the books because no one bothers to remove them. That neglect is a lesson in itself.

What obscene meant then, and what it means now

The word at the centre of the Comstock Act has changed meaning over time, and that history explains why so much of the law faded. In the nineteenth century, courts commonly asked whether a work tended to deprave or corrupt those whose minds were open to such influences, a standard that let prosecutors target serious literature and medical texts because of a single passage. Under that approach, Comstock and his allies pursued books about anatomy, marriage and sexual health alongside material almost anyone would call pornographic.

In the twentieth century the Supreme Court narrowed the definition. In Roth v. United States in 1957, it held that obscenity was not protected by the First Amendment but defined it more narrowly, focusing on material that, taken as a whole, appealed to prurient interest. In Miller v. California in 1973, it set out the test still used today, which asks among other things whether a work, taken as a whole, lacks serious literary, artistic, political or scientific value. Medical information about contraception or pregnancy plainly has scientific value, so the obscenity clauses long ago stopped reaching that kind of material.

The abortion provisions are different, because they do not depend on the word obscene. They name specific items: any article, drug or medicine intended for producing abortion. That is why they have outlived the obscenity clauses in practical importance. It is also why the intent requirement that courts read into them matters so much. Mifepristone and misoprostol are used for more than ending pregnancies. Doctors prescribe them to manage miscarriage, and misoprostol has other common uses. A literal reading that ignored intent would reach a pharmacy shipping medicine for a woman whose pregnancy had already ended on its own.

The Comstock debate is also a debate about how much power a single statute hands the executive branch. Federal prosecutors decide whom to charge, and carriers decide what to accept. A revived reading could be pursued without any new law at all, through enforcement choices and agency guidance. That is precisely why a clear decision by Congress, one way or the other, would be more democratic than leaving the question to whoever controls the Justice Department in a given year.

Why the mail matters so much now

It is worth pausing on why a law about the post office has become so important. Before 2022, most abortions in the United States took place in clinics, and the pills used in medication abortion were usually handed to patients in person. Since Dobbs, the map of clinics has shrunk in many states, and telehealth has grown. A patient can now consult a licensed clinician by video or online form, receive a prescription, and have the medication delivered. For people in rural areas, people without cars, and people who cannot take days off work, that change has made care reachable in a way a clinic hundreds of miles away is not.

That is exactly why opponents of abortion have focused on the mail. If pills can travel by post, state bans become harder to enforce, because the act happens across state lines and inside private homes. The Comstock Act offers, in theory, a single federal lever to stop it. Supporters of abortion access see the same fact from the other side: telehealth and mail delivery are now among the most important ways people get care, and the Comstock Act is the most direct legal threat to them.

Seen this way, a law written to suppress pamphlets and rubber goods in the age of the telegraph has become a central question in the age of the smartphone. The words have not changed. The world they would be applied to has.

What you can do

1. Ask your members of Congress a precise question: would they vote to repeal the abortion-related provisions of the Comstock Act, sections 1461 and 1462? The representatives finder gives you their phone numbers and contact forms, and their latest votes.
2. Watch the courts. Any attempt to enforce the statute against mailed pills would move quickly into litigation, and Court Watch follows the Supreme Court's opinions and emergency docket this term.
3. Track federal rules. FDA decisions about mifepristone's label and distribution can be the subject of public input; the public comment page lists federal rules open for comment, closing soonest first, grouped by issue.
4. Read the ongoing coverage on the reproductive rights page, which follows shield laws, pills by mail and the fights between states.
5. Talk with people who disagree. Many Americans who oppose abortion would still balk at a nineteenth-century law being used to bar mail deliveries nationwide. Ask them whether a ban of that size should be enacted by Congress in the open, or revived from a dusty shelf.

Comstock spent four decades turning his personal convictions into federal policy, one seizure at a time. The way to retire his law is the way it should have been retired long ago: by a public vote.