Opinion | Can the 19th Century Law That Banned Walt Whitman Also Ban Abortion by Mail?

Last week, Judge Matthew Kacsmaryk, a Trump appointee to the federal bench, issued a nationwide ban on the use of mifepristone, one of two drugs commonly used in combination to medically terminate pregnancies. The Fifth Circuit subsequently reversed part of Kacsmaryk’s ruling, though the case will likely go before the Supreme Court for full resolution.

Kacsmaryk’s decision was expected, given the judge’s long history of opposition to reproductive rights, but it was stunning nevertheless. Critics noted that the group that filed suit against the FDA was founded by doctors who don’t themselves perform abortions or prescribe mifepristone; they therefore lacked standing to sue. Critics also say the plaintiffs shopped for an anti-abortion judge who would surely issue a nationwide injunction, and that the decision itself was remarkably intemperate, invoking charged terms like “abortionist” and “unborn human,” as well as using shaky reasoning to substitute the judgement of a single judge lacking a medical education for the FDA, an organization staffed by medical experts and operating with a very clear congressional mandate to serve as the sole arbiter of what drugs Americans can access.

While a federal circuit court panel issued a partial stay until the ruling can be fully appealed, the reasoning on which both the plaintiff and Kacsmaryk partially based their arguments is arguably more eye-popping than the decision itself. Citing the Comstock Act, a sweeping anti-obscenity measure passed by Congress in 1873, Kacsmaryk found that it was patently illegal to access abortifacients by mail.

While the legal battle over mifepristone has real-world implications for millions of Americans, the decision itself portends a more aggressive agenda that extends well beyond abortion access. In citing the Comstock Act, Kacsmaryk tipped his hand.

Over 150 years ago, evangelical Protestant leaders, then at the height of their political influence, used state power to impose their personal, religious worldview on the entire country. It worked. But the Comstock Act, while still on the books, has been largely superseded by over a century of jurisprudence. That today’s conservative legal activists want to resurrect it suggests that we are in store for a much broader culture war — one that the right may win in a partisan Supreme Court but will lose in the political arena.

The Comstock laws (the first was passed in 1873 and companion acts cleared Congress in subsequent years, strengthening the statute) outlawed the interstate mailing of any device or medicine used to terminate a pregnancy, as well as written materials that instructed women and doctors how to terminate pregnancies. It also barred use of the mail to transport “obscene” or “immoral” materials — be it pornography or smutty literature — as well as contraceptive drugs and devices. They even banned personal letters whose content pushed the prevailing bounds of decency. The law explicitly encouraged states to address the same range of materials on an intrastate basis, and indeed, by 1900, 42 states had enacted their own Comstock laws.

Named for Anthony Comstock, a Civil War veteran who moved to Brooklyn after the war and became involved in citywide anti-vice campaigns, the federal law and its state equivalents represented a major victory on the part of evangelical Christian organizers who, in the 1870s, asserted an active role for religion in the public and political spheres. Concerned by the temptations that young people faced in the country’s burgeoning cities, these activists sought to reimpose Christian values and order in the defense of public health and safety. They also sought to curtail women’s reproductive rights in the service of maintaining a gendered hierarchy that the war and its dislocations had temporarily upended in the prior decade.

To understand both how and why evangelical Christians imposed their personal religion on the entire country, it’s helpful to take a step back.

In the decades leading up to the Civil War, America experienced a great religious awakening, as millions of ordinary people flocked to new evangelical churches. The ranks of the clergy swelled. Tract societies and evangelical newspapers became key staples of public culture. Evangelical Christianity also inspired a wave of reform movements that bridged otherwise disparate causes like temperance, public education and abolitionism. But while antebellum churches supported a range of reform movements, they focused for the most part on moral suasion — on filling pews and saving souls, and on convincing sinners to right their own ways — rather than using the political process for coercive measures.

Until the Civil War.

The war fundamentally politicized the nation’s evangelical churches, particularly in the North. Evangelical leaders, both lay and clergy, overwhelmingly agreed (in the words of Joseph Medill, editor of the Chicago Tribune and a deeply religious political activist) that the war was fundamentally a “war for Christian civilization.”

Individual denominations often blurred the line between the sacred and the secular in their own fashions. A Presbyterian synod likened the Confederacy to Satan’s attempted usurpation of the throne of God. At Methodist meetings, flags were often on prominent display and congregants were frequently encouraged to swear mass loyalty oaths. The churches raised money for the war effort, ran recruitment drives, sent thousands of clergymen into the field to serve as chaplains and staffed two government-sanctioned organizations: the Sanitary Commission and the U.S. Christian Commission, which ministered to soldiers’ physical and spiritual needs. They also lent full-throated support to the abolition of slavery and the government’s increasingly punitive approach to fighting a total, rather than limited, war against the Confederacy.

By 1864, support for the Union quickly evolved into support of the Republican Party.

Prominent clerics like Henry Ward Beecher, Granville Moody of Ohio and Robert Breckinridge — and hundreds of political clergymen, particularly in the battleground states of the Midwest — stumped for Lincoln and the GOP with impunity. On the eve of the election, Matthew Simpson, a leading Methodist bishop, rallied the faithful at the New York Academy of Music. In a special election version of his famous “war speech” — part sermon, part patriotic exhortation — the bishop waved a bloody battle flag belonging to New York’s 55th Regiment and called on all Christians to vote for “the railsplitter … president” in the upcoming canvass.

Whereas in the antebellum era, Protestant reformers focused on saving souls and influencing individual behavior from the pulpit, now they actively embraced politics.

Political Christianity came in different flavors. In the late nineteenth century, liberal Christians involved themselves with gusto in the Social Gospel, a new movement that advocated for safer and cleaner housing, public infrastructure and the right of workers to organize and strike.

The Social Gospel represented one, but not the only, outgrowth of the political brand of Protestantism that emerged from the 1860s. More socially conservative Christians threw themselves into a broad array of coercive social reform campaigns. Comstock, founder of the New York Society for the Suppression of Vice — an offshoot of the Young Men’s Christian Association — was the most prominent of the conservative leaders. He built a powerful coalition that worked toward criminalizing contraceptive devices, abortion, prostitution and pornography. Frances Willard, a devout Methodist, led the Women’s Christian Temperance Union, an organization devoted to the prohibition of manufacturing or selling alcohol. Unlike the evangelical reform movements of the mid-19th century, the brand of reform championed by religious leaders like Comstock and Willard focused on state intervention — and state power — rather than moral suasion at the individual level. In the same way that today’s conservative culture warriors are going to war with school librarians, teachers and corporate boards, the religious conservatives of Comstock’s day used politics to enforce their private understanding of what was right and righteous. Like their liberal counterparts in the Social Gospel movement, evangelicals concerned with vice and morality had learned during the Civil War to see a natural confluence between church and state.

Comstock began his anti-vice career as something of a crank, but with the support of New York’s evangelical church establishment — and later, as an official agent of New York state and the federal government — he proved devastatingly successful at imposing his particular understanding of morality on the American public. He was single-handedly responsible for the arrests of almost 100 people and the seizure of 202,214 obscene photographs and drawings, 21,150 pounds of books, 63,819 contraceptive items and abortifacients and innumerable devices designed for sexual pleasure — that is, 19th-century sex toys. He even managed to get a new edition of Walt Whitman’s classic, Leaves of Grass, barred from the mails.

Armed with state power, conservative evangelicals operated at the peak of their influence. In the coming decades, that influence waned as a rising wave of Jewish and Catholic immigrants made America more pluralistic and modern science challenged longstanding ideas about biblical inerrancy. But it was a testament to the organizing acumen of activists like Comstock that they were as effective as they were.

Fast forward to 2023, and it’s not at all clear how activist judges like Matthew Kacsmaryk believe they can wind back the clock. The Comstock laws have long been superseded by a statutory and legal privacy revolution — beginning at least with Griswold v Connecticut (1965) — that granted individuals the right to consume pornography, purchase sex toys, use contraception and, in roughly half the states, terminate a pregnancy.

In a world where telehealth is on the rise and most insurers encourage the use of mail-order prescriptions, the Comstock Act is both an obsolete tool ill-suited to the modern health care economy and a menace. If the statute bars the mailing of abortifacients — drugs used to perform a procedure that is still legal in half the country — doesn’t it also criminalize mail-order birth control and Viagra? Mail-order sex toys, lingerie, pornography (for those without a good internet connection) and steamy romance novels? Paintings depicting nudity?

The answer is yes, of course — if one applies consistent logic (a standard that has never much concerned conservative legal activists). And that is the tell. No thinking person would invoke the Comstock laws in a modern legal brief or court ruling unless they truly endorsed the use of state power to restrict private freedoms.

The conservative activists may yet win the day if, as Attorney General Merrick Garland has requested, the Supreme Court reviews the case. If it seems crazy to imagine the Supreme Court resuscitating the Comstock Act, just use your imagination. All you need to do is count to five.

But the political backlash will likely be swift. As Dan Pfeiffer recently argued in his Substack newsletter, conservatives “are Losing the Culture War …Badly.” Public support for abortion rights, opposition to book bans and puzzlement over conservatives’ increasingly bizarre obsession with children and sexuality has turned off large swaths of the voting public, according to extensive polling data.

More to the point, 2023 is not 1873. Church membership and religious identity have been in a freefall for decades. In the years immediately following the Civil War, evangelicals still enjoyed a preponderance of numbers and power. But today, the U.S. is a more pluralistic, more liberal and less religious country. Even the mainline evangelical churches themselves are divided over cultural issues. Conservative evangelicals may speak with the loudest voice, but they hardly represent the majority of self-identifying Christians.

The Comstock laws, which sought to impose a particular religious worldview on the country, were controversial enough in their own time. There is little chance the public will support them today. The question is: How far are some conservative jurists willing to go in defiance of popular will? Based on recent events in a Texas courtroom, the answer seems to be: just as far as the Comstock laws will allow.