Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom

Reva Siegel & Mary Ziegler, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, Yale L. J. (forthcoming)

In the aftermath of the overturning of Roe v. Wade, the antiabortion movement has focused on a new strategy: transforming the Comstock Act, a postal obscenity statute enacted in 1873, into a de facto national ban on abortion. Claims on the Comstock Act have been asserted in the medication abortion case now before the Supreme Court and in the campaign for the Presidency. This Article offers the first legal history of the Comstock Act that reaches from its enactment to its post-Dobbs reinvention, offering critical resources for evaluating claims for revived enforcement of Comstock that are now being asserted in courts and in politics. 

The Article's history undermines revivalists' claims about the Comstock statute's meaning and the democratic legitimacy of enforcing the law as they interpret it today. Revivalists read the statute as a plain-meaning, no exceptions nationwide abortion ban when the law Congress enacted in 1873 policed obscenity rather than criminalizing health care. Even the judges who developed the most expansive Victorian understanding of obscenity under the statute protected the doctor-patient relationship. The public's repudiation of this expansive approach to obscenity as "Comstockery"-an illegitimate and overbroad understanding of obscenity that encroached on democracy, liberty, and equality-led to the statute's declining enforcement and to cases in the 1930s affirming that federal obscenity law allowed Americans to protect their health. 

These developments were not only statutory; they were constitutional. From conflicts over Comstock's enforcement emerged popular claims on democracy, liberty, and equality in which we can recognize roots of modern free speech law and the law of sexual and reproductive liberty lost to constitutional memory. Recovering this lost history changes our understanding of the nation's history and traditions of sexual and reproductive freedom.