The Comstock Act's Threat to Abortion Rights If Harris Loses

Left: Anthony Comstock, (1844-1915), an American fanatical and anti-vice activist is shown. The source word "Comstockery," is derived from his protests. Right: Victoria Claflin Woodhull (1838-1927) , c. 1870. Credit - From Left: Bettmann/Getty Images; Fine Art Images/Heritage Images/Getty Images

Gene P. Hamilton, a member of former President Donald Trump’s Administration, proposes in Project 2025 — the blueprint for a second Trump Presidency put together by an array of conservative groups — that the next conservative President should resurrect parts of the Comstock Act, a relic of the 19th century. The law banned the mailing of any obscene matter as well as items used to procure an abortion. Hamilton asserts that the Supreme Court’s Dobbs decision, which eliminated the constitutional protections for abortion services, cleared the way to enforce Comstock once again. This would provide a way for the federal government to severely constrict access to abortion without Congress passing a new law.

The Comstock Act was named for Anthony Comstock, a leader of the anti-obscenity movement. It grew out of his effort to stifle the influence of Victoria Woodhull, the first woman to run for president in 1872. More than 150 years later, it may take Americans electing Vice President Kamala Harris as the first woman president to prevent a return to the crusade embodied by Comstock, which sought to curtail reproductive rights and reinforce an unequal social structure that legally gave men control over women.

Woodhull was one of the most vibrant and magnetic public figures of her time. She raised herself up from her extremely abusive childhood and young adult life. She and her sister Tennessee Claflin became the first “lady brokers” of Wall Street, where they attracted the powerful support of railroad and shipping magnate, Cornelius Vanderbilt, one of the wealthiest men in America. In 1870, the sisters started publishing an unflinching reform newspaper, Woodhull and Claflin’s Weekly, which embraced radical labor politics, women’s suffrage, and critiques of the gendered hierarchy of marriage.

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In early 1871, Woodhull entered the women’s rights activism scene that had been growing for decades. Woodhull gave a formal presentation to the House Judiciary Committee highlighting a new approach to women’s suffrage. The plan was for suffragists to push Congress to pass a declaratory act stating that women as “persons” under the 14th Amendment already had the right to vote. The hope was that this approach would offer a quicker and easier route for securing women’s right to vote at the federal level than the arduous constitutional amendment process.

Following Woodhull’s presentation, she quickly gained influence among the members of the National Woman Suffrage Association (NWSA), including Elizabeth Cady Stanton, Paulina Wright Davis, and Isabella Beecher Hooker. Although Susan B. Anthony expressed concern about Woodhull’s work, the radical Woodhull would not be deterred from boldly attacking the gender inequality embedded in the traditional model of family and state. As a proponent of free love, a movement that espoused the right to sexual self-determination, Woodhull steadfastly criticized the 19th century legal paradigm of marriage in which husbands held legal rights to their wives’ domestic labor and sexual services. (Marital rape was legally permissible in the U.S. until the 1970s.)

By the spring of 1872, Woodhull had decided to launch a presidential campaign to strengthen the push for social change by uniting various groups of radicals, including suffragists, socialists, labor activists, and greenbackers (advocates of paper money) under the banner of the “Equal Rights Party."

Despite Woodhull’s fierce charisma, her forthright advocacy of women’s sexual autonomy alarmed those who were still attached to the traditional sexual order that had given men authority over women in law and custom. In the fall of 1872, she faced mounting public criticisms over her own sexual life (she had been married, divorced, and now remarried). In response, Woodhull launched an attack on one of her main critics: Henry Ward Beecher, a member of the cultural elite and one of the country’s most prominent preachers. In her publication, she underscored Beecher’s hypocrisy by recounting his sexual infidelities with Elizabeth Tilton, the wife of one of his foremost parishioners.

Woodhull’s presidential campaign was everything Comstock feared and despised, and when she exposed the Beecher-Tilton affair, he saw an opportunity. The anti-vice crusader wanted to stymie Woodhull’s influence and move forward with an initiative that would harness the power of the federal government to enforce a particular vision of the U.S. social order.

Comstock was at the foreground of a growing cultural current taking hold of U.S. society that was deeply obsessed with sexual morality. He was part of a struggle to rid the country of sexual radicalism and secure social purity through the enforcement of traditional gender roles that sought to confine women to the domestic realm as child bearers and homemakers. By the time of Woodhull’s presidential campaign, this movement had started to encourage political authorities to censor and suppress criticisms of marriage and divorce laws, as well as discussions of reproductive control and sexual freedom.

In November 1872, Comstock sought Woodhull’s arrest for violating an 1865 federal law that prohibited the mailing of any “obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character” by publishing information about the Beecher-Tilton affair. Following her arrest, Woodhull spent election night in jail where she was held for several weeks. But Comstock feared that the case against Woodhull would fall apart because the law under which she was arrested didn’t cover newspapers. He was right. Woodhull was acquitted in June 1873.

Due to his growing realization that Woodhull could escape conviction, in the winter 1873, Comstock lobbied Congress to pass stiffer anti-obscenity laws. In March 1873, his efforts prompted Congress to pass an “Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles for Immoral Use.” The measure quickly became infamous for banning the mailing of any materials deemed lewd or lascivious. Equally important, it classified information concerning contraception and abortion as obscene, and it forbid the mailing of any drug, medicine, or article for abortion or contraceptive purposes. Comstock became a special agent of the U.S. Post Office Department authorized to oversee and enforce the new law’s provisions.

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The Comstock Act encouraged even more restrictive action on the state level, as many states went on to pass laws that outlawed the use, possession, and distribution of contraception and abortion materials. This body of obscenity laws gave Postal Service inspectors the authority to monitor and examine the mail of private citizens for the purposes of preventing the circulation of anything deemed to be sexually dangerous, including discussion of issues relating to contraception and abortion.

Americans quickly objected to the Comstock Act. Intellectuals and free speech activists denounced it while newspaper and magazine cartoonists parodied Comstock relentlessly for his intolerance of anything that he had deemed to be socially suspicious, including gambling, drinking, and profanity. In 1878, the National Liberal League, a leading national organization that backed free speech and religious freedom, sent a petition to Congress with 70,000 names seeking repeal of the Comstock Act.

Despite the impressive public backlash to the Comstock Act, Congress never repealed it. The measure remains on the books to this day. In the 1930s, federal courts did begin to severely limit the measure’s reach, particularly regarding its provisions relating to birth control and the circulation of obscene materials. In 1973, the Supreme Court upheld constitutional protections for abortion rights in Roe v. Wade.  That decision prevented enforcement of the Comstock Act provisions related to the mailing of abortion materials, until it was overturned in Dobbs. Women’s rights activists unsuccessfully called for Congress to specifically remove these provisions several times over the years.

After Dobbs, the Biden Administration determined that it would not enforce the Comstock Act’s prohibitions on the mailing of abortion medication and surgical tools, in the extreme manner advocated by abortion opponents, because the act only applies when the sender intends for the material or drug to be used for an illegal abortion. Since there are plenty of legal uses for abortion-related drugs and materials, the Administration concluded that it was impossible to determine the intent of the sender.

But that finding doesn’t bind Biden’s successor. As Hamilton’s proposal in Project 2025 suggests, an administration that is hostile to reproductive rights could interpret the Comstock Act differently to allow for the prosecution of those who send or receive abortion-related materials in the hopes of further restricting the availability of abortion services. This move would dramatically limit access to reproductive healthcare — even in states that have sought to protect reproductive rights.

More than 150 years after Woodhull announced her presidential run, the U.S. has yet to elect a woman as president. That reality could change in November. As we face this historic election, it is important to remember that when the first woman ran for president so many years ago, the opponents of social change launched a full-throttle attack on reproductive autonomy and free speech. And thanks to Project 2025, a remnant of that history, the Comstock Act, remains with us today, and it has the potential to determine access to reproductive healthcare well into our future.

Rebecca DeWolf is a historian with a PhD in history from American University. She is author of Gendered Citizenship: The Original Conflict over the Equal Rights Amendment, 1920-1963 from the University of Nebraska Press. Her current book project, The Tyranny of Husbands: Reproductive Control, Property Rights, and Women’s Activism, 1820-1890, explores the criminalization of abortion in the 19th century.

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