Comstock Law

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Comstock Law

Excerpt from the Comstock Law

Reprinted from The Statutes at Large and Proclamations of the United States of America from March 1871 to March 1873, Vol. XVII. Edited by George P. Sanger

Published in 1873

Sexual morality has long played an important role in U.S. criminal justice history even as many other Western countries have decreased emphasis on these kinds of moral offenses. Sexual crimes are those activities that the local community finds offensive. During the late 1870s a national campaign was mounted to legislate public morality. As new advances in birth control were made through the nineteenth century, interest steadily grew. By the 1870s a wide variety of birth control methods were readily available in pharmacies throughout the nation.

"That no obscene . . . pamphlet, picture, paper, print, or other publication of an indecent character . . . may be written or printed."

Abortion, too, remained free of legal restriction in many areas. The easy public access to birth control information and devices attracted the opposition of Anthony Comstock (1844–1915) and others. Believing access to birth control promoted greater sexual activity outside of marriage, they lobbied Congress to pass a bill prohibiting the mailing of birth control information and devices as well as abortion information through the U.S. mail. They also hoped to prohibit the shipment of birth control items from state to state.

Things to remember while reading excerpts from the Comstock Law:

Anthony Comstock authored a 1868 comprehensive law in New York State that prohibited the distribution of literature and photographs that some considered immoral works. Comstock also founded the New York Society for the Suppression of Vice in 1868, for which he served as an officer until his death in 1915.
The Comstock Law was primarily aimed at stopping trade in obscene literature and other immoral items; both birth control devices and abortion fell within this definition.
Under the Comstock Law, the U.S. Postal Authority was responsible for deciding what was obscene; Anthony Comstock also began serving as a U.S. Post Office Inspector in 1873.
Efforts to prohibit abortions began in the 1820s in the United States.
As states passed laws banning abortion in 1820s, illegal abortions became increasingly frequent until passage of the Comstock Law.

Excerpt from the Comstock Law

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 [way] 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 . . . 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, . . . 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 . . . any of the hereinbefore-mentioned articles or things . . . 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 . . . 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 hereinbefore mentioned. . . .

What happened next . . .

The Comstock Law was widely used to prosecute people distributing birth control information and devices. In 1878 a movement was attempted to repeal the Comstock Law but met with only limited success. The Comstock Law remained largely intact. Anthony Comstock was credited for destroying some 160 tons of literature and photographs he considered obscene.

The most famous case involving the Comstock Law was brought against Margaret Sanger (1879–1966) in 1936. Sanger, an American activist in the distribution of birth control information in the early twentieth century, was arrested and prosecuted for her activity on many occasions (see sidebar). Due to the efforts of Sanger and other birth control advocates, the court overturned federal efforts to stop birth control,
essentially ending Comstock Law prosecutions concerning birth control.

By the end of the nineteenth century most abortions had been outlawed. In 1965 all fifty states still had antiabortion or pro-life laws that allowed abortions only in cases of rape, incest, or to save the mother's life.

By 1967 the federal government became an active player in distributing birth control information, first through the Child Health Act and then the Family Planning Services and Population Act of 1970, which established separate government funds for birth control. By the late twentieth century, pro-abortion rights groups promoted birth control, sex education, and healthcare. The programs, while controversial, became part of public school curriculums. Some members of pro-life groups, however, had turned to violent measures such as bombing abortion clinics to get their point across.

Margaret Sanger

Margaret Sanger was a trained nurse who worked with poor women in the Lower East Side of New York City. Faced with the effects of unplanned pregnancies on a daily basis, in 1912 she left nursing and began distributing birth control information. Sanger founded the monthly publication The Woman Rebel, which included birth control information. The first issue appeared in March 1914. Upon using the mail for distributing the publication in 1913 she was indicted under the Comstock Law for mailing obscene materials. Authorities confiscated (removed) all copies of the publication.

The publication's issues over the next five months were similarly confiscated. The indictment was withdrawn and in 1917 Sanger founded the National Birth Control League. In the next few years she established the first birth control clinic in Brooklyn, New York. She was arrested and sentenced to thirty days at the Queens penitentiary in New York. In the following years she was arrested and prosecuted many times for distributing birth control information.

In 1921 the National Birth Control League became the American Birth Control League. In 1923 she opened the first permanent birth control clinic in the United States, in New York City. In 1927 Sanger helped organize the first World Population Conference and by 1942 the Birth Control League became the Planned Parenthood Federation. Through the years Sanger wrote many books and articles on birth control.

In the early twenty-first century, sexual moral offenses included adultery, incest (sex with a family member), bigamy (illegally having two spouses; a person may only have one legal spouse at a time), polygamy (having multiple spouses at the same time), obscene materials, and statutory rape (sex with an underage person). Pornography was protected by the First Amendment of the Constitution as freedom of expression. This includes magazines, books, photographs, and videos. Pornography becomes obscene and illegal only when it violates existing local standards of morality and decency. It is still a criminal offense to produce and sell obscene material. What is considered obscene varies from community to community and through time. In contrast, child pornography is always illegal.

The most common sexual crime throughout the United States remained prostitution. Congress passed the Mann Act in 1910 making it illegal to transport women across state lines for the purpose of prostitution. Enforcement went beyond forced prostitution to combat prostitution in general.

Did you know . . .

The distribution and use of contraceptives remained a crime until 1965 when the U.S. Supreme Court issued a landmark decision, ruling that the ban on birth control interfered with an individual's right to privacy.
Another Supreme Court decision in 1969 ruled laws banning possession of obscene material in a person's home were unconstitutional.
One of the largest morals cases before the Supreme Court was in 1973 when the Court ruled that the ban on abortion (during the first three months of pregnancy) in most states was unconstitutional, again on the grounds of invasion of privacy.
A major international organization opposing the distribution of birth control information and devices as well as abortions in the twenty-first century is the Roman Catholic Church.
In 1878 the first birth control clinic was opened, located in Amsterdam, in the Netherlands.
In the late 1990s Congress attempted to control pornography on the Internet through the Communications Decency Act of 1996 and the Child Online Protection Act of 1998. Both, however, were found unconstitutional reflecting the difficulty of enforcing standards on the Internet.

Consider the following . . .

Look up in the library or on the Internet various articles by birth control advocate Margaret Sanger. What arguments does she present in her fight against the Comstock Law? Why did she believe women should be freely provided with birth control information?
What has been the history of sex education and birth control counseling in your school or community? Is it readily available or strictly limited?
List the reasons provided by those who oppose making moral offenses a crime and the reasons offered by those promoting criminalization of socially deviant behavior. Which approach do you believe is most appropriate?

Conception: The process of becoming pregnant.

Unlawful abortion: The deliberate termination of a pregnancy.

Scurrilous epithets: Abusive or vulgar words or names.

Abet: To support.

Conformably: Consistent with.