The latest battle on the abortion front involves the application of one of a series of 19th-century federal laws that, according to a U.S. District Court judge who cited it, "bars the mailing of abortion drugs only when the sender has the specific intent that the drugs be used unlawfully."
If upheld, it would have a significant effect on the use of the abortion pill mifepristone, long approved by the U.S. Food and Drug Administration and commonly sent through the mail.
The laws, named for onetime Chattanoogan Anthony Comstock and passed by Congress in 1873 following his zealous crusading throughout the states, are a set of federal acts that — among other things — ban the mailing of anything "obscene, lewd, lascivious" or considered morally impure, including abortifacients or abortion-related materials.
In December, the U.S. Department of Justice Office of Legal Counsel issued an opinion for the U.S. Postal Service declaring that federal law does "not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully. Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.''
However, U.S. District Judge Matthew Kacsmaryk ruled the cases cited in the Department of Justice opinion did not support the view that the Comstock Act forbids the mailing of abortion drugs only when the sender understands that the drugs would be used unlawfully, and, thus, pills like mifepristone violate the act.
The Louisiana federal appellate court seemed to agree, saying the "text does not require that a user of the mails or common interstate carriage intend that an abortion actually occur. Rather, a user of those shipping channels violates the plain text merely by knowingly making use of the mail for a prohibited abortion item."
For now, per a stay on the lower courts' rulings by the United States Supreme Court, access to the pill will remain while the appeals process plays out.
We were intrigued by Comstock, a Connecticut native who was a moral crusader beginning in the first decade following the Civil War.
Before the war, he was a grocery clerk in his native state, then enlisted in the 17th Regiment of what was likely the 5th Connecticut Infantry Regiment. That regiment, according to Civil War histories, moved to Stevenson, Alabama, in late September 1863. The members then served guard duty along the Nashville and Chattanooga Railroad through April 1864, during which time the Battles for Chattanooga occurred.
Though Comstock returned to Connecticut and worked as a grocery clerk when his regiment mustered out in 1865, he soon returned to Chattanooga, according to the Nov. 25, 1882, Chattanooga Daily Times, "to assist in superintending the repair of the buildings of the Lookout mountain educational institute."
(Later newspaper accounts also identified him as an instructor at the institute, its assistant business manager and its provisional superintendent.)
The Lookout Mountain Educational Institute, according to the online Historical Marker Database, was "originally planned as a coeducational philanthropic school for white children." It was founded on Lookout Mountain, in 1866, first used as a hospital for Union offices and discontinued in 1872.
Illness, according to the 1882 newspaper, compelled Comstock to return to Connecticut, where he, upon recovery, traveled to New York City "with a borrowed capital of $5." While working there first as a porter and then in other menial jobs, he "began his work in the suppression of licentious literature, at first without aid and with very limited means of carrying on his work."
The account called him "a plucky and vigorous man" who has survived numerous death threats and attacks "with remarkable courage and persistency. One of the attacks laid "open his cheek with bowie knife."
Not everybody felt that way about the former city resident. In what appears to be a letter to the editor in 1880, a writer opined that it is "hard to determine whether Comstock is a vulgar minded idiot, or a nervous fanatic who is making of himself so much a nuisance that he needs to be suppressed."
The writer further suggests "Comstock is probably too good for this wicked world. Even nature will presently shock his sensitive soul, and he will set about putting drapery on all created things. Anthony's cattle, horses and pigs will not be allowed to expose themselves to the public gaze undressed."
And we thought the discourse was rough in 2023.
Comstock, who ultimately held the title of secretary of the New York Society for the Suppression of Vice, died in 1915.
Somewhere between the onetime Chattanoogan's unachievable desire for a morally pure world and today's society which would promote everything he detested, and more, is a satisfactory middle ground. Whether concerning abortion or a variety of subjects, it is a place a good swath of the country wants to reach.