What is the Comstock Act? Understanding the 19th-century law being used to restrict access to reproductive rights.
Last Friday the Supreme Court issued a stay on a lower court ruling that revoked the Food and Drug Administration’s more than 20-year-old approval of mifepristone, one of two medications that have been prescribed together for decades in the U.S. to end unwanted pregnancies. The ruling temporarily preserves access to a safe and effective abortion medication while the case goes through appeals.
Science journalist and author Annalee Newitz spent years researching and interviewing people about the Comstock Act and Comstock himself for their 2019 novel The Future of Another Timeline, in which characters time travel to try to prevent Comstock from getting his law passed. Scientific American spoke with Newitz about what history their research uncovered and how a 150-year-old obscenity law is being used to restrict abortion and reproductive rights in the 21st century.
That is a very different model from how, in the contemporary world, we understand abortion—because abortion was kind of precariously made semi-legal in the 1970s under the Fourth Amendment, under privacy laws.
Then you get this shift in the early 1970s around privacy law, and reproductive health is placed under privacy. Pretty much every lawyer I’ve ever talked to about this who’s super knowledgeable about reproductive rights is like, Why did we do that? That was such a precarious ruling—so easy to roll back, as we’ve seen [with last year’s Supreme Court decision overturning Roe v. Wade]. But it seemed like a good idea at the time.
It’s all tied up with a lot of the same issues that we’re grappling with nowadays: What kinds of books should we allow children to read? What should police powers be? What is the role of courts? But you know, it’s funny, because now that they’re picking on mifepristone, I think we’re going to get a really funny backlash from an unexpected source, perhaps—which is the pharmaceutical industry.
Yeah, I mean, I think that’s exactly why drug companies are sitting up and taking notice and sending briefs. This is now an attack on science. So they’re using abortifacients as an excuse to attack a broad range of medical interventions. [Editor’s Note: Congress repealed the parts of the Comstock Act dealing with contraceptives in 1971.]
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