Comstock Redux
By Alexander Sanger
May 21, 2023
I thought that my grandparents had killed off Anthony Comstock in 1915. Aiming at my grandmother, Comstock entrapped and arrested my grandfather, William Sanger, for distributing my grandmother’s birth control pamphlet, Family Limitation. Comstock testified at his trial at the infamously dank Tombs in September 1915. My grandfather was sentenced to 30 days in prison; Comstock caught a chill and died of pneumonia eleven days later.
He didn’t die, though. His law lives on and like a zombie, is coming back from the undead to wreak havoc and destruction on women.
Some history first – excerpted from my book, Beyond Choice – and then some more recent thoughts.
The birth control movement which my grandmother, Margaret Sanger, started in the early 20thcentury was a reaction to the 19th century pro-life movement that succeeded in reversing American and British law, which had permitted birth control and abortion, and in criminalizing them both almost entirely. The campaign to restrict reproductive freedom was not solely based on a respect for unborn life at its earliest stages. Rather it was a campaign founded upon the institutional imperatives of organized medicine, the Protestant reaction to Irish Catholic immigration, and the feminist and fundamentalist drive for social purity in sexual matters.
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Even though men took the lead in advancing the medical, political and racial arguments for the criminalization of birth control and abortion, some women were also in favor of this legislation, as they were in favor of other “social purity” campaigns after the Civil War that sought to enact laws to restrict various immoral pursuits such as gambling, drinking and prostitution. In these campaigns the political odd bedfellows, the Know-Nothings and the regular physicians, were joined by some women’s rights activists. As Ellen Chesler, my grandmother’s biographer, described it: the native white Americans seeking to preserve their hegemony “were joined by religious fundamentalists, physicians looking to secure their status, and self-proclaimed feminists who believed they were promoting their own autonomy by regulating sexual behavior and by attacking pornography, alcohol and vice.” Into the vice category fell any expression of human sexuality other than between married couples for purposes of reproduction.
So, Anthony Comstock, an official of the YWCA who headed the New York Society for the Suppression of Vice, found ready allies in some feminist circles for his social purity campaign to prevent the dissemination through the U.S. mails of obscene materials, which he defined to include any information on human sexuality, reproduction, birth control and abortion. Every publication or article “designed, adapted, or intended for preventing conception or producing abortion, or for any indecent or immoral purpose” was banned. After Congress enacted the Comstock Laws in 1873 that banned sexuality, birth control and abortion information from the mails as contraband, individual states followed suit and criminalized the dissemination of contraceptive and abortion information and devices within their borders, though with some variations that permitted greater or lesser discretion to physicians. The result was that by the last quarter of the 19th century birth control and abortion had essentially been criminalized at both the state and federal levels.
The result was not that birth control and abortion were thereby eliminated from American society. Instead, they largely went underground. Some forms of birth control methods remained available but were sold under euphemistic titles. Abortion potions were sold as a tonic for “female problems”, diaphragms were “womb supports”, and condoms were called “rubber goods”. Andrea Tone in Devices and Desires: A History of Contraceptives in America states: “…legal leniency, entrepreneurial savvy, and cross class consumer support enabled the black market in birth control to thrive.” It is difficult to estimate how widely contraception and abortion were used, whether the poor were able to afford them or how safe and effective they were. We can surmise that almost everyone in American society had access to either birth control or abortion because the birth rate continued its century long decline even after both were criminalized.
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There is evidence that Comstock was not an absolutist on abortion. He convinced the New York Legislature to enact Section 1142 of the New York Penal Law which reads as follows:
A person who sells, lends, gives away, or in any manner exhibits or offers to sell, lend or give away, or has in his possession with intent to sell, lend or give away, or advertises, or offers for sale, loan or distribution, any instrument or article, or any recipe, drug or medicine for the prevention of conception or for causing unlawful abortion…
Note the qualifier “unlawful” before abortion.
There followed Section 1145 of the New York Penal Law:
“An article or instrument, used or applied by physicians lawfully practicing, or by their direction or prescription, for the cure or prevention of disease, is not an article of indecent or immoral nature or use, within this article. The supplying of such articles to such physicians or by their direction or prescription, is not an offense under this article.”
Comstock and an interviewer had the following exchange in 1915 a few months before his death:
“Do not these laws handicap physicians?” (the interviewer) asked, remembering that this criticism is sometimes made.
“They do not,” replied Mr. Comstock emphatically. “No reputable physician has ever been prosecuted under these laws. Have you ever known of one?” I had not, and he continued, “Only infamous doctors who advertise or send their foul matter by mail. A reputable doctor may tell his patient in his office what is necessary, and a druggist may sell on a doctor’s written prescription drugs which he would not be allowed to sell otherwise.”
This criticism of the laws interfering with doctors is so continually made that I asked again:
“Do the laws ever thwart the doctor’s work; in cases, for instance, where pregnancy would endanger a woman’s life?”
Mr. Comstock replied with the strongest emphasis:
“A doctor is allowed to bring on an abortion in cases where a woman’s life is in danger. And is there anything in these laws that forbids a doctor’s telling a woman that pregnancy must not occur for a certain length of time or at all? Can they not use self-control? Or must they sink to the level of the beasts?”
“But,” I protested, repeating an argument often brought forward, although I felt as if my persistence was somewhat placing me in the ranks of those who desire evil rather than good, “If the parents lack that self-control, the punishment falls upon the child.”
“It does not,” replied Mr. Comstock. “The punishment falls upon the parents. When a man and woman marry, they are responsible for their children. You can’t reform a family in any of these superficial ways. You have to go deep down into their minds and souls. The prevention of conception would work the greatest demoralization. God has set certain natural barriers. If you turn loose the passions and break down that fear, you bring worse disaster than the war. It would debase sacred things, break down the health of women and disseminate a greater curse than the plagues and diseases of Europe.”
Comstock seemed: 1) to permit therapeutic abortion and 2) to believe birth control a worse sin that abortion.
This was a view shared by the Archbishop of New York Patrick J. Hayes who issued a pastoral letter in 1921, after he had ordered the arrest of my grandmother (Archbishops could do that in 1921):
“To take life after its inception is a horrible crime; but to prevent human life that the Creator is about to bring into being is satanic.”
My grandmother opened America’s first birth control clinic on October 16, 1916. She was promptly arrested and convicted of violating the New York Comstock law. She appealed her conviction even though she had clearly violated the law.
Up until my grandmother’s case, the New York Comstock law prevented the distribution of contraceptives or contraceptive information with one exception— doctors could prescribe birth control “for the cure or prevention of disease”. This language was understood to mean that a man could be given a condom when he went to a prostitute so that he could avoid contracting a venereal disease. Birth control could not be given by a physician to be used at home by a man with his wife to prevent pregnancy. The trial judge had in fact stated a woman had no right “to copulate without fear of pregnancy”. My grandmother had argued that women had precisely that right, but that was not the issue before the court. The issues were women’s health and the right of physicians to practice medicine.
My grandmother pointed out the absurdity of the Comstock Law’s double standard—that males were protected by the law’s exception and that females were not—and used the testimony of the women who had flooded the clinic to show that pregnancy had serious health consequences for women and that there were often valid medical reasons for avoiding or postponing pregnancy. After considering the arguments, the all-male New York Court of Appeals affirmed Margaret’s conviction on the grounds that she was a nurse not a doctor and had no doctor with her in the clinic. But at the same time the Court expanded the authority of doctors under the exception to the Comstock law to practice medicine largely as they saw fit. The Court specifically authorized doctors to prescribe contraceptives to a woman when there was a valid health reason for prescribing them.
The Court said that the exception to the Comstock Law, which permitted physicians to prescribe contraceptives “for the cure or prevention of disease”, was not intended to permit “promiscuous advice to patients irrespective of their condition” but was broad enough to “protect a physician who in good faith gives such help or advice to a married person to cure or prevent disease”. The Court then referred to Webster’s Dictionary for a definition of “disease”: “an alteration of the state of the body, or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain and sickness; illness; sickness; disorder.”
Without saying so explicitly, the Court had defined pregnancy as a “disease” since in its broadest interpretation pregnancy was an “alteration of the state of the body”. If interpreted more narrowly, a woman needed to have some preexisting medical condition that a pregnancy could aggravate. Under the Court’s decision, promiscuous advice to single men and women was still illegal, but preventive contraceptive advice to married men and women was not.
The opinion in Sanger v. New York (“Sanger”) was a subtle but stunning victory. It was the first crack in the Comstock laws. It breeched the double standard of sexuality that permitted men but not women to enjoy sex without fear of pregnancy. It treated women as human beings with real health needs. It permitted doctors to practice medicine. It opened the door a crack to legitimizing and legalizing birth control. The price for this victory, however, was the medicalization of birth control. On this the Court was firm. Birth control was not a matter for the layperson. It was not a matter for nurses (then mostly female), it was a matter for physicians (then mostly male), and physicians only, a distinction that profoundly irritated my grandmother. And it reiterated that sex and birth control were for married persons only.
The Sanger case enabled my grandmother to make a new series of arguments in favor of birth control: that having birth control legal and regulated and under physician control meant that it would be safer for women and that when children were planned and properly spaced women, children and society would all benefit. Margaret Sanger reminded audiences of Sadie Sachs and even of her own mother for whom unwanted childbearing was a death sentence. Women and children would not survive unless women could control whether and when they had children. It was to these biological arguments that my grandmother would turn as she began the second phase of her campaign in the state legislatures and in Congress to overturn the Comstock laws. No longer would she emphasize the class or feminist arguments for birth control. She saw these as too limiting in their appeal, especially for men, who she knew had to become supporters of the movement in order for it to progress. These arguments were also offensive to physicians who she now knew she needed to convert to her side. Her arguments would henceforth be mostly biological, medical and social, though her feminist arguments were never far below the surface in the birth control movement, and they resurfaced in the 1960’s and 1970’s as the primary arguments for the legalization of abortion.
Finally, one day in the mid-1930’s, after years of beating her head in seeming futility against the walls of Congress trying to get the federal Comstock law amended to permit the distribution of birth control information through the mails, Margaret was lamenting her lack of progress to Morris Ernst, a famed New York lawyer. Ernst reminded Margaret of her victory 20 years earlier in Sanger v. New York, where she had convinced the highest court in New York to “reinterpret” the New York Comstock law. Ernst believed they could use a similar strategy by brazenly violating the federal Comstock law in order to force a court to reinterpret it. My grandmother promptly asked a Japanese doctor to mail a box of diaphragms to the medical director of her New York clinic, Dr. Hannah Stone. Having been alerted ahead of time by Margaret to do their sworn duty, the U.S. Customs duly seized the package as contraband under the federal Comstock law, and Margaret and Dr. Stone filed suit to get their diaphragms back. The case, entitled the United States v. One Package of Japanese Pessaries (“One Package”), was heard by the Federal Second Circuit Court of Appeals in 1936. As Morris Ernst had predicted, the three-judge panel reinterpreted the federal Comstock law and declared it inapplicable to the importation, sale or mailing of contraceptives on the ground that contraceptives had some legal uses under state laws such as New York’s. Like the Sanger case before it, this was a stunning decision. The One Package court used two judicial sleights of hand to justify its ruling: first it reinterpreted the Sanger case and then it reinterpreted the Comstock law.
The federal Comstock law, unlike the New York Comstock law, had no exception for physicians which permitted them to use the mails to distribute contraceptive information or devices for the cure or prevention of disease. My grandmother and Dr. Stone had clearly violated the law, just as my grandmother had in Sanger. Nonetheless, Ernst introduced into evidence, through Dr. Stone, all the biological, medical, scientific and social research that my grandmother had gathered over the years, proving the health and medical benefits of contraception for women and children. By so doing Ernst gave the court the opportunity to reinterpret the Sanger case.
Doctor Stone testified that she prescribed pessaries “in cases where it would not be desirable for a patient to undertake a pregnancy.” (Emphasis added). Judge Augustus Hand, writing for the Court, accepted Dr. Stone’s testimony as the legal standard announced in and permitted under the Sanger case. Hand stated that “the use of contraceptives was in many cases necessary for the health of women.” These statements, that birth control could be prescribed when a pregnancy was not desirable and that birth control was necessary for the health of women, go far beyond what the Sanger decision in fact permitted. Neither Dr. Stone nor Judge Hand required, prior to the prescription of birth control, as the Sanger case had, that there be a physician finding of a “disease” to “cure or prevent” or even that the patient be married. Thus, Sanger was reinterpreted by Hand to greatly expand the authority of physicians to prescribe birth control. Judge Hand then went on to rule that, even though the federal Comstock law specifically banned articles for preventing conception, the law did not “prevent the importation, sale or carriage by mail of things which might intelligently be employed by the conscientious and competent physicians for the purpose of saving life or promoting the well-being of the patients.” (Emphasis added) Hand was essentially saying that since physicians, under his reinterpretation of Sanger, had so much discretion about the circumstances where they could prescribe birth control, the old law shouldn’t get in the way. The fact that Congress had intended the law to get in the way was disregarded.
The government declined to appeal the One Package decision to the United States Supreme Court. As a result, the One Package case by two clever legal sleights of hand essentially legalized birth control in America—at least at the federal level under physician control. The American Medical Association endorsed birth control within the year. The Sanger and One Package cases together took birth control in less than two decades from being illegal, prior to 1918, to being permitted for disease prevention, broadly defined, to finally being permitted when a pregnancy was not desirable or to promote the well-being of the patient. The Courts that made these rulings did so, not on the basis of feminist arguments or privacy arguments, but on the basis of the individual health and medical benefits of contraception. The Courts based their rulings squarely upon the authority of doctors, indeed the obligation of doctors, to provide care for their patients. Underlying both legal victories were my grandmother’s arguments that reproductive freedom was a biological and social necessity for women, men and children. My grandmother had argued that birth control enabled women to better survive the rigors of childbearing and also gave children a better chance at life, health and survival when they were properly spaced and planned. She argued that birth control was a moral imperative because it provided for a healthier, happier and more prosperous human race. The initial legal battles for birth control were won because the Courts came to realize that permitting the government to prohibit birth control made no sense from a medical and health point of view, and thus from a moral point of view. Birth control was necessary for the survival and health of humanity; government had to get out of the way.
The One Package case was not the only Federal Appeals Court decision on Comstock. Repeatedly, the appeals courts have ruled that the Comstock Law does not prohibit mailing abortion, as well as contraceptive, medications or devices that could be used legally. The courts required that the government prove a seller’s, or mailer’s, intent that the devices or medications be used illegally. Since virtually every state permitted therapeutic abortion as well as other exceptions, this is virtually impossible to prove. Congress accepted these judicial interpretations when it repeatedly amended the Comstock Law. See the Post Office memorandum: https://www.justice.gov/olc/opinion/file/1560596/download.
The Comstock Law was never repealed. It was amended several times, thereby giving its anti-abortion provisions life. An attempt was made in Congress in the 1990s to repeal it, but it failed. Puritanism and the desire to control women’s sexuality remain alive and well.
Congress in the 1996 amended the Comstock Law in the Communications Decency Act to prevent the dissemination of abortion information on the internet. The Clinton Administration acceded to the law but announced it would not enforce it. I and my Civil Liberties Union colleagues thought this an outrage, and on the day the law was signed by President Clinton, I posted on the internet the hours and locations of the clinics of Planned Parenthood of New York City, of which I was president. The ACLU filed suit on my behalf to overturn the Communications Decency Act. The case, Sanger v. Reno, was heard in Federal District Court in Brooklyn. Our problem was that there was no “case or controversy” for the court to rule on. The government would not enforce the law, and until a government did, there was no case. Alas our case was dismissed, but our point had been made. Sanger v. Reno, 966 F. Supp. 151 (E.D.N.Y. 1997). The Comstock Law was a dead letter, or so we thought.
With the overturn of Roe, the Comstock Law is the weapon of the day to prevent the mailing of abortion pills. If one were to look at the One Package decision as precedent, one could say that the Comstock Law does not apply where a pregnancy or having a child was not desirable or if a physician determined abortion was necessary to promote the well-being of the patient. Further, the government would have to prove intent that the device or medication be used illegally. But these are the days where some judges willfully ignore precedent.
There are probably older laws still on the books, but none so heinous as Comstock’s. The damage it will do to woman is untold. Poor women, rural women, those who cannot travel to safe states. We will be back to the days of self-induced, dangerous abortion, and back to the days when seeing this led my grandmother to start her crusade.
Alexander Sanger 