Once upon a time, one of the easiest forms of “content” one could do was churning out listicles or, hell, even entire books about the all the wacky state laws in this country that no one actually acknowledges or enforces. Like how you can’t let a donkey sleep in your bathtub in Alabama after 7 p.m. or how pi is or was legally 3.2 in Indiana and what have you.
As for wacky national laws? Well, we’ve still got the Comstock Act, named for the former Postmaster General and “anti-vice activist” Anthony Comstock who was, as Emma Goldman put it in her autobiography, the head of the “moral eunuchs of America.”
These laws bar “Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use” — which, for Comstock, included pornography, literature, sex toys, sex advice and, of course, birth control. However, it hasn’t been used in decades, as evidenced by the fact that you can go over to Amazon and buy yourself as many dildos and copies of Tropic of Cancer as you like without fearing arrest.
On Tuesday, during arguments for the Food and Drug Administration v. Alliance for Hippocratic Medicine, Justices Samuel Alito and Clarence Thomas started questioning why birth control was allowed to be sent through the mail at all, because of said laws.
Via Washington Post:
Justices Samuel A. Alito Jr. and Clarence Thomas repeatedly invoked the Comstock Act during Tuesday’s oral arguments regarding the abortion drug mifepristone, pressing lawyers about whether the 1873 federal law should apply to abortion drugs sent through the mail today. Alito rejected the Biden administration’s argument that the law is obsolete — it has not been applied in nearly a century — with the conservative justice insisting that Food and Drug Administration officials should have accounted for the law when expanding access to mifepristone by mail in 2021.
The law, to be clear, is deeply, deeply stupid. It bars sending entirely legal things, like birth control or Lady Chatterly’s Lover, through the mail.
“The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban,” Rep. Cori Bush tweeted. “Not on our watch.”
As much as I may enjoy thinking of all the formerly “liberal” men whose great love of free speech sent them fleeing over to the Right to escape the horrible persecution of those who were persecuting others or even “just asking questions” about how maybe some persecution is a good thing that might be nice for people to put up with once in a while, only to get slapped right in the face by “Actually, we really did just want to use racial slurs without anyone criticizing us, and now we want to bring the Comstock Act back so we can throw people in prison for mailing birth control information or D.H. Lawrence books!” … I really do think that obscenity laws should not exist and that anyone ought to be able to send any legal thing in the mail so long as it can be mailed. Like, sure, don’t pour soup into an envelope and send it to someone, but other than that, have at.
Frankly, I would even go so far as to keep any laws written by anyone who has ever seriously referred to masturbation as “self-pollution” off the books altogether. That, itself should be a law.
We should be ashamed of a chapter in our history in which we sent suffragettes to federal prison for mailing “sexually explicit marriage manuals.” And most of us are!
No one should have to fear that archaic laws that should not even be on the books to begin with could be used, by their political enemies, to punish them. If Samuel Alito and Clarence Thomas wish to eat a diet of Kellogg’s Corn Flakes to suppress any desire to “self-pollute,” that is their business, but I believe they should be free to walk down the street while eating a raw onion in Northfield, Connecticut, without fearing arrest or fine, and that people ought to be able to send birth control, mifepristone, and any other legal substance through the mail as well.
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