By Frederick S. Lane

Gravesite of Andrew Comstock. The Comstock Act came back from the dead. Photo credit: Frederick S. Lane

The name Anthony Comstock has been in the news a lot over the last few weeks.

That’s really something of a surprise, given that Comstock died almost 109 years ago in his Summit, NJ, home. But he left behind a legacy of legislative and cultural activism that increasingly resonates with the country’s growing Christian nationalist movement. 

Following brief service in the Civil War, Comstock moved from his native Connecticut to Manhattan. A devout Christian, Comstock was horrified by what he considered to be the city’s rampant immorality—all-too-readily available alcohol, pornography, contraception, abortion services, etc. Imbued with a righteous vigor, Comstock began a lonely vigilante effort to combat vice. It was, to say the least, an uphill battle.

His work did not go unnoticed, however. Wealthy sponsors of the Young Men’s Christian Association (you may have seen some of them on HBO’s The Gilded Age) gave Comstock some much-needed donations to continue his work, and in the fall of 1872, hired him to travel to Washington to lobby for passage of an anti-vice law.

It is likely that the poorly educated young moralist was both surprised and dismayed at the limits on what Congress could do. Under our system of dual sovereignty, the several states are primarily responsible for adopting and enforcing criminal laws. Congress can pass criminal laws as well, but generally, those laws are only enforceable on federal property or with respect to any activity over which Congress has constitutional authority (like, for instance, the nation’s postal service).

Fortunately for Comstock, his YMCA sponsors were able to introduce him to a powerful ally: US Supreme Court Associate Justice William Strong, who was himself a devout Christian and an unsuccessful advocate for a constitutional amendment declaring the United States to be a “Christian nation.” Strong helped Comstock draft a bill prohibiting the sale of anything “of indecent or immoral nature” in the District of Columbia and other federal territories and amending the US Postal Code to prohibit the mailing of “obscene, lewd, or lascivious” items or “any article or thing designed or intended for the prevention of conception or procuring of abortion.”

After some legislative wrangling, the legislation was passed in the final moments of the Congressional session in the early morning of March 3, 1873. Not long afterward, Comstock was appointed as a special agent of the Post Office Department and charged with enforcing the legislation that, in no small part due to his relentless self-promotion, would come to bear his name.

There was just one problem for the young vice-hunter: The privacy of sealed letters is one of the oldest and most rigorously-observed norms in our nation’s history. It is a principle embedded in the warrant requirements of the Fourth Amendment and in the provisions of the Post Office Act of 1792, which prohibited government surveillance of private letters. Throughout his career, Comstock was dogged by charges that he was willing to invade the privacy of the mails in his overly zealous efforts to stamp out immorality.

Less than a year after his appointment, for instance, the Chicago Weekly Post and Mail ran a short editorial entitled “Anthony’s Fall.” While praising some of his work, the paper noted he was also charged with “endeavoring . . . to induce men to break the law which he was appointed to enforce, and . . . unwarranted supervision of the mail matter of firms not disposed to a quiet submission.”

“When this vast power is given to one man alone,” the paper continued, “he becomes a Napoleon of the Mail Bags. . . . The office itself should be done away with, as it gives to one man alone the power to do an immense amount of evil as well as a great deal of good.”

The editorial’s call went unheeded, and Comstock went on to a four-decade-long career of harassing publishers, gamblers, physicians, midwives, and others. By the end of his career in 1915, however, legal developments and cultural changes had made Comstock a fusty object of ridicule. The Comstock Act slowly but surely slid into legal obsolescence.

Over the last few years, the spirit of Comstock has found its purest revival in the person and work of US District Court Judge Matthew Kacsmaryk, the sole judge presiding over the Amarillo federal courthouse in the Northern District of Texas. A former deputy counsel for the First Liberty Institute (one of the most religiously conservative law firms in the country), Kacsmaryk was appointed in 2017 by then-President Trump and confirmed in 2019. As the sole judge in his courthouse, Kacsmaryk is the preferred jurist for Christian nationalist legal actions, like the one filed in November 2022 by the Alliance for Hippocratic Medicine against the Food and Drug Administration.

The lawsuit, filed by a number of anti-abortion doctors, challenged the federal agency’s 2000 initial approval of the abortion drug mifepristone, as well as its subsequent rulings in 2016 and 2021 that eliminated in-person requirements for prescribing and delivering mifepristone to patients. That made the drug available by mail, and according to the Center for Reproductive Rights, mifepristone now accounts for more than half of all abortions in the United States.

In their complaint, the physicians specifically referenced the Comstock Act and argued that the FDA was allowing doctors to violate the law’s still-valid prohibition against “the mailing of ‘(e)very article, instrument, substance, drug, medicine or thing’ that produces ‘abortion.’” In his opinion granting a national injunction against mifepristone, Kaczmaryk relied heavily on plaintiffs’ arguments regarding the validity and effect of the Comstock Act.

“Plaintiffs have a substantial likelihood,” Kaczmaryk wrote, “of prevailing on their claim that Defendants’ decision to allow the dispensing of chemical abortion drugs through mail violates unambiguous federal criminal law” (i.e., the Comstock Act).

On April 14, 2023, the United States Supreme Court issued a stay of Kaczmaryk’s injunction, and in December, agreed to hear an appeal filed by the US Department of Justice. During oral arguments on March 26, 2024, a majority of the Court expressed doubts about whether the anti-abortion medical plaintiffs even had standing to bring their lawsuit. But the Court’s two most conservative jurists, Justices Samuel Alito and Clarence Thomas, also made it clear that they were, at the very least, Comstock Act-curious.

The Court’s opinion is not expected until late spring or early summer 2024, but even if the Court does rule against the Alliance, the zombie Comstock Act will still star in the fevered dreams of Christian nationalists. For instance, the Heritage Foundation’s dystopian transition blueprint, Mandate for Leadership, explicitly calls on the Department of Justice to enforce the Comstock Act’s prohibition against the mailing of abortifacients.

Minnesota US Senator Tina Smith, a former Planned Parenthood executive, wrote in a New York Times op-ed that she is exploring legislation that will “protect the ability of doctors, pharmacies and patients to receive in the mail the supplies they need to exercise their right to reproductive care.” Whether such legislation is ever considered will depend in no small part on the outcome of the 2024 election.

In the meantime, it is worth reflecting on the sobering words written in 1884 by an unnamed writer for The Worthington Advance, a Minnesota weekly. They apply with equal force to both Comstock and Kaczmaryk:

Comstock represents a principle and an innovation which ought to be stamped out at once. We mean the uniting of the ecclesiastical and the civil officer in one man, an old European practice which every American should curse and upon which the people should jump with both boot heels at once and stamp it out.

About the Author 

Frederick S. Lane is an author, attorney, educational consultant, and lecturer based in Brooklyn, NY. He is a nationally-recognized expert in the areas of cybersafety, digital misconduct, personal privacy, and other topics at the intersection of law, technology, and society. Lane has appeared on The Daily Show with Jon Stewart, CNN, NBC, ABC, CBS, the BBC, and MSNBC. He has written eight books, including Cybertraps for Educators. Find him online at FrederickLane.com and on Twitter (@fsl3).