The next big move to end abortion: A sleeping dragon lies ready for awakening
Meet the Comstock Act of 1872
I try not to write intensively political columns.
This is an exception because it involves an issue that does not belong in the political arena to begin with.
Abortion.
If you think Donald Trump already has done his damage to abortion rights by appointing three Supreme Court Justices who engineered the repeal of Roe v. Wade, you may be wrong.
Those three justices were selected because they had the approval of the Heritage Foundation, which is in the business of promoting the advancement of conservative issues, which, the Foundation has decided, specifically include an absolute and total ban on abortion in America.
The Heritage Foundation website is very clear about this, stating, “Overturning Roe was never the pro-life endgame. Only when every woman and unborn child is protected from abortion in all 50 states and U.S. territories will this great human rights fight of our time be over.”
But what happened to the conservative battle cry that Roe needed to be overturned because there was no Constitutional power for a nationwide legalization of abortion? That the individual states, not the federal government, should have the power to regulate abortion?
It now looks like that was an “Oops. We didn’t mean it.”
The Heritage Foundation now has moved on to an approach for banning all abortion nationwide without the enactment of a single new law at any level. Further, it would, in effect, overturn the abortion rights amendments that have been added to several state constitutions.
But how is that possible?
The answer requires turning the clock back to 1872 when The New York Sun uncovered a huge scandal in which congressmen accepted millions of dollars in bribes to keep quiet about what was, in effect, the theft of $44 million from the U. S. Treasury by Union Pacific (UP) railroad executives. UP had created a construction company, Credit Mobilier of America to build a key portion of the nation's first cross-country railroad line. The UP spent $50 million to build this section of rail, but through Credit Mobilier, billed the federal government $94 million. UP executives pocketed the $44 million difference and then used some of the cash plus $9 million in discounted UP stock to bribe members of Congress to keep quiet. The $44 million overcharge/theft is the equivalent of $1.14 billion today.
The scheme left Congress desperately searching for a way to turn public attention in a different direction. Perhaps a campaign to demonstrate its morality by fighting such public nemeses as abortion or pornography? Why not both? And why not throw in prostitution? You get the idea.
Enter Anthony Comstock, who had launched a Christian morality campaign in New York through the New York YMCA’s Committee to Suppress Vice. He also founded the New York Society for the Suppression of Vice. He appointed himself a volunteer detective as part of a campaign to enforce Sunday closing laws in New York. He had a long list of other things he wanted to get rid of to uphold Christian morality. In addition to the aforementioned, these included profanity, so-called obscene literature, contraception, masturbation, and gambling. (He also targeted patent medicine, which was unregulated then and greatly deserving of regulation.)
In December 1872, as the fallout from the railroad scandal threatened to wreck political careers, Comstock saw his chance to take his campaign national. He traveled to Washington and introduced Congress to his proposed new morality laws. He was well received. He made another trip to Washington in February 1873 carrying with him obscene materials he had confiscated in New York in the name of his anti-vice campaign. Even better. “All were very much excited and declared themselves ready to give me any law I might ask for if only it was within the bounds of the Constitution,” he wrote in his diary, as Ellen Wexler reported in Smithsonian Magazine last June.
The Comstock Act was passed the following month, banning the sale, distribution, possession, and distribution by mail or other means of materials relating to contraception, pornography, or abortion. Anthony Comstock was almost immediately appointed a special agent of the Postal Service to oversee enforcement of the new act. One of his enforcement techniques was entrapment by using the mail himself to tempt those who were interested in obscenity and contraception, according to Amy Sohn, author of ”The Man Who Hated Women -- Sex, Censorship, & Civil Liberties in the Gilded Age.”
Three years later, Congress took another swing at anti-obscenity as it enacted stronger penalties for violations of the Comstock Act. Violators could be fined up to $5,000 (the equivalent of $145,000 today) and sentenced to up to 10 years of hard labor, penalties that essentially would ruin people’s lives. He specifically targeted women violators of the Comstock Act. In an era when the average life span was about age 40, some of these women committed suicide rather than risk spending the rest of their lives at hard labor. Comstock seemed comfortable with this fact, if not proud of it, as he discussed the impact the law was having on morality. Following the suicide of Madame Restell in New York, an abortion provider he had targeted through entrapment, he offered this observation: “A bloody ending to a bloody life.” Madame Restell slit her throat in a bathtub at her home in 1878.
Today, the Comstock Act has lain dormant for many years. Its ability to target contraception was removed by Congress some years ago, but its provisions for targeting abortion were left on the books.
The Heritage Foundation now states that the Comstock Act “unambiguously prohibits mailing abortion drugs.” It would require nothing more than enforcement of an existing law prohibiting providers from distributing abortion pills or even medical instruments used to perform abortions, the Foundation says. Pharmacies and healthcare providers also could be prevented from receiving such goods.
Trump began his campaign for president by distancing himself from Dobbs, the Supreme Court case that overturned Roe. Now, however, he has begun bragging about having appointed the three Supreme Court justices who made Dobbs possible. “I’m proud of it,” he said recently in a line that seemed oddly reminiscent of Comstock.
There are parallels between Comstock and Dobbs. Both were targeted at abortion and yet, both provide possible workarounds for women of means. Today, women who can afford travel still can find places to get a legal abortion. Women of the nineteenth century could escape the abortion ban in Comstock by obtaining, for a price, a medical or therapeutic exemption.
In any case, a Republican president in 2025 almost certainly would be pushed by the Heritage Foundation to implement its goal of an absolute national ban on abortion. Trump, the presumptive nominee, seems ready for that to happen.
The Comstock Act lies in wait.
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Arnold Garson: Second Thoughts is part of the Iowa Writers’ Collaborative. To receive a roundup of the week’s columns, subscribe to the Collaborative’s Sunday email.
Iowa's attorney general was among the Republican AGs who wrote to major pharmacy chains last year, warning them that federal law prohibits mailing abortion drugs: https://www.bleedingheartland.com/2023/02/10/brenna-bird-quietly-pursues-extreme-anti-abortion-agenda/