When I was fifteen, there were only two options for buying condoms. They were available from vending machines in the men’s rooms of some seedy restaurants. There, they came in fruit flavors, had names like “French tickler,” and promised “to drive her wild.” Alternatively, I could go to a pharmacy. There, condoms were kept behind the counter so that, to get some, I’d have to ask the pharmacist. The condoms from both sources were prominently labeled with the disclaimer that they were being sold “only for the prevention of disease.”
I didn’t realize that the disclaimer on the label was there because of the same 1873 law that Supreme Court Justices Samuel Alito and Clarence Thomas now want to use to limit the sale of pills that can induce abortion. The law is known as Comstock, after Samuel Comstock, a self-described “anti-vice activist” who, in the late 19th century, made it his life’s work to fight sexual licentiousness. He was against women’s right to vote, contraception, masturbation, pornography, and abortion.
In 1873, Comstock successfully lobbied for the passage of “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.” That law forbade the distribution of anything deemed obscene, including both written works and any articles or devices that could encourage wanton sexual activity. Such as condoms. The law specifically empowered the US Postal Service to inspect packages looking for such prurient material, confiscating it, and arresting those who sent it. The law is still on the books, making it technically illegal to transport or sell contraceptives such as condoms. In the 1930s, federal appeals courts narrowed the scope of the Comstock Act. They decided that the mailing of contraceptive materials was not illegal if their intended use was not illegal. Condoms could have two purposes – contraception or the prevention of sexually transmitted disease. Hence the label, a legal loophole that fooled nobody and served merely as a wink and nod of deference to a zombie law.
The Supreme Court’s current interest in Comstock’s 1873 law derives from the legal theory, proposed by the Alliance for Hippocratic Medicine, that mailing mifepristone is a violation of the Comstock Act. In some states, Attorneys General warned pharmacies that “federal law expressly prohibits using the mail to send or receive any drug that will ‘be used or applied for producing abortion.’” The Heritage Foundation has called for the use of Comstock prohibitions to criminalize the mailing of mifepristone. They write, “The plain, ordinary, and unambiguous meaning of § 1461 (of the Comstock Act) prohibits using the mail to send or deliver anything that is designed, adapted, or intended to produce abortion.” They propose that the next Administration enforce the act.
The use of Comstock reasoning would have at least three interesting consequences. First, it would likely lead to the sort of tongue-in-cheek labeling that allowed the sale of condoms. Mifepristone could accurately be labeled as intended only for use in missed miscarriages. That is not an obscene, immoral, or illegal use. Then, like condoms, it could be used for something else entirely. Second, a precedent blocking the shipping of any material intended to be used for abortion might implicate many other devices. After all, dilation and curettage (D&C) procedures are among the most common surgical procedures performed in the United States. Comstock reasoning could be used to ban the sale of dilators, curettes, and aspiration devices used in these procedures because such devices are also “used for producing abortion.” The Court would inevitably be caught up in cases testing the reach of Comstock prohibitions. Third, a revival of Comstock would likely lead to a need for the Supreme Court to weigh in on debates about obscenity and pornography. The law doesn’t distinguish literature from drugs or devices.
Comstock considered anything to be obscene if it could lead to sexual behavior. The law prohibits the mailing of not just abortion pills but also “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.” It could be used to ban medical textbooks that describe gynecological procedures that “may or can” be used to perform abortions. It could ban the mailing of any surgical device that “may or can” be used to provide an abortion. Mary Ziegler, an expert on abortion law, notes that Comstock could apply to tools and drugs used in abortions or even to written information about how to perform an abortion. It could ban any novel or newsreel that described an abortion.
The law has been used to ban literature deemed obscene. It had been used to ban Chaucer’s The Canterbury Tales, John Cleland’s Fanny Hill, Boccaccio’s The Decameron, Voltaire’s Candide, Joyce’s Ulysses, and Lawrence’s Women in Love. It is frightening to think how the Supreme Court might rule on today’s films, lyrics, novels and poetry. But it is happening.
Condoms can now, of course, be ordered on-line. They have no exculpatory labels. They are on the shelves of pharmacies, near the vibrators, lubes, and oral contraceptives. We are used to that. But, for fifty years, we were used to legal access to abortion. After the November election, everything could change and we will have to pretend to be other than we are, doing things other than what we are doing, in order to please our censorious overseers.