March 3, 1873. On this day, 139 years ago, the 42nd U.S. Congress passed the Comstock Act. This United States federal law amended Sec. 148 of the 1872 Post Office Act and made it illegal to send any “obscene, lewd, or lascivious” materials through the mail, including contraceptive devices and information about how to “obtain or make” the same. This act also recognized prior state-level bans on abortion. States passed similar prohibitions on materials distributed within the states. These state and federal restrictions are collectively known as the Comstock laws.
Anthony Comstock was only 28 years old at the time. He had gone to Washington in December 1872 to help craft a new bill, having been appointed by the Committee for the Suppression of Vice to take charge of the Federal and State bills. The new bill was designed to close loopholes in the 1872 Post Office Act. Two months of prayer, hard work, and concern followed. The bill actually passed the Senate; but when Comstock learned that it would nullify all of the pending prosecutions under the obscenity law of 1872, he amended the bill on Feb 24. This would force the bill to go back to the Senate again. The amendment contained a provision to enable those prior 1872 prosecutions to continue as if the new 1873 law had not been enacted. The 42nd Congress was set to adjourn on March 4, so this was a big risk at the final hour.
On Saturday, March 1, the bill was not introduced. As Sunday approached, Comstock, being a strict Sabbath observer, sat in torment until 12:30am when he left the House chamber. He resolved to honor the Sabbath and keep it holy. He prayed in earnest that morning and could not bring himself to go to church at such a low time. He instead read a sermon, which inspired him to pray for God’s will to be done, not his own. His worry and discouragement turned to joy, having sought the Lord. Later that day, he learned that the House had passed the bill at 2:00am with only 30 votes against it. Joy filled young Comstock’s soul and he wrote of God’s mercy. The bill was signed by President Grant on March 3 and Comstock attended Grant’s second term inauguration ceremonies on March 4, which was one of the coldest on record.
Comstock turned 29 on March 7.
The contraceptive ban of the Comstock Act stood 63 years until 1936 when it was held that the 1873 Act could not be used to ban shipments which originated from a doctor. This was a test case set up by Margaret Sanger, which is known as United States v. One Package of Japanese Pessaries.
In 1965, the U.S. Supreme Court case Griswold v. Connecticut struck down one of the remaining contraception Comstock laws in Connecticut and Massachusetts. Griswold only applied to marital relationships. Seven years later in 1972, Eisenstadt v. Baird extended Griswold to unmarried persons as well.
The abortion ban stood another 100 years until 1973.
FORTY-SECOND CONGRESS. Sess. III. CH. 258. 1873, known as The Comstock Act of 1873
CHAP. CCLVIII. – An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and
Articles of Immoral Use.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whoever, within the District of Columbia or any of the Territories of the United States, or other place within the exclusive jurisdiction of the United States, shall sell, or lend, or give away, or in any manner exhibit, or shall offer to sell, or to lend, or to give away, or in any manner to exhibit, or shall otherwise publish or, offer to publish in any manner, or shall have in his possession, for any such purpose or purposes, any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article of an immoral nature, or any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion, or shall advertise the same for sale, or shall write or print, or cause to be written or printed, any card, circular, book, pamphlet, advertisement, or notice of any kind, stating when, where, how, or of whom, or by what means, any of the articles in this section hereinbefore mentioned, can be purchased or obtained, or shall manufacture, draw, or print, or in any wise make any of such articles, shall be deemed guilty of a misdemeanor, and, on conviction thereof in any court of the United States having criminal jurisdiction in the District of Columbia, or in any Territory or place within the exclusive jurisdiction of the United States, where such misdemeanor shall have been committed; and on conviction thereof, he shall be imprisoned at hard labor in the penitentiary for not less than six months nor more than five years for each offense, or fined not less than one hundred dollars nor more than two thousand dollars, with costs of court.
Sec. 2. That section one hundred and forty-eight of the act to revise, consolidate, and amend the statutes relating to the Post-office Department, approved June eighth, eighteen hundred and seventy- two, be amended to read as follows:
“Sec. 148. That no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other
publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement or notice of any kind giving information, directly or indirectly, where, or how, or of whom, or by what means either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail, and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any of the hereinbefore-mentioned articles or things, or any notice, or paper containing any advertisement relating to the aforesaid articles or things, and any person who, in pursuance of any plan or scheme for disposing of any of the hereinbefore-mentioned articles or things, shall take, or cause to be taken, from the mail any such letter or package, shall be deemed guilty of a
misdemeanor, and, on conviction thereof, shall, for every offense, be fined not less than one hundred dollars nor more than five thousand dollars, or imprisoned at hard labor not less than one year nor more than ten years, or both, in the discretion of the judge.”
Sec. 3. That all persons are prohibited from importing into the United States, from any foreign country, any of the hereinbefore-mentioned articles or things, except the drugs hereinbefore-metioned when imported in bulk, and not put up for any of the purposes before mentioned; and all such prohibited articles in the course of importation shall be detained by the officer of customs, and proceedings taken against the same under section five of this act.
Sec. 4. That whoever, being an officer, agent, or employee of the government of the United States, shall knowingly aid or abet any person engaged in any violation of this act, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every offense, be punished as provided in section two of this act.
Sec. 5. That any judge of any district or circuit court of the United States, within the proper district, before whom complaint in writing of any violation of this act shall be made, to the satisfaction of such judge, and founded on knowledge or belief, and, if upon belief, setting forth the grounds of such belief, and supported by oath or affirmation of the complainant, may issue conformably to the Constitution, a warrant directed to the marshal, or any deputy marshal, in the proper district, directing him to search for, seize, and take possession of any such article or thing herein-before mentioned, and to make due and immediate return thereof, to the end that the same may be condemned and destroyed by proceedings, which shall be conducted in the same manner as other proceedings in the case of municipal seizure, and with the same right of appeal or write of error; Provided, That nothing in this section shall be construed as repealing the one hundred and forty-eight section of the act of which this act is amendatory, or to affect any indictments heretofore found for offenses against the same, but the said indictments may be prosecuted to judgment as if this section had not been enacted.
APPROVED, March 3, 1873.
