The forgotten law at the heart of the abortion pill case

April 14, 2023

A 150-year old law that many Americans have never heard of before is at the heart of the recent ruling on the abortion pill. The Comstock Act of 1873 was passed to safeguard public morality by suppressing the distribution and sale of obscene materials—including information on abortion—through the U.S. Postal Service (USPS).

As part of his recent ruling, a federal judge in Texas determined that the Comstock Act prohibits the mailing of chemical abortion drugs. Originally enacted as part of the Comstock Act of 1873, section 1461 currently declares “[e]very article or thing designed, adapted, or intended for producing abortion,” as well as “[e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion,” to be “nonmailable matter” that the USPS may not lawfully deliver.

Here’s what you should know about the history and significance of the Comstock Act, and the impact it had on American society and the pro-life cause.

Who was Comstock?

During the mid-19th century, American society was experiencing rapid industrialization, urbanization, and social change. This period saw the rise of new forms of communication that facilitated the spread of ideas and information. The increase of printed materials was of particular concern among religious and social conservatives who worried about the potential for the rapid spread of immoral and corrupting content.

Anthony Comstock, a devout Christian and crusader against vice, was at the forefront of this movement. He believed that obscenity, particularly in the form of erotic literature and contraceptives, posed a threat to the moral fabric of American society. He also viewed abortion as a grave moral evil and sought to restrict its promotion through the dissemination of information. To address these concerns, Comstock lobbied for legislation that would enable the government to suppress the distribution of such materials. 

The Comstock Act, officially titled “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use,” was passed by Congress and signed into law by President Ulysses S. Grant on March 3, 1873. The act made it illegal to use the USPS to send or receive any “obscene, lewd, or lascivious” materials, including contraceptive devices and information on abortion. Violators faced severe penalties, including fines and imprisonment.

The Comstock Act expanded the powers of the USPS, granting postal inspectors the authority to search and seize materials they deemed obscene. As the act was broadly worded, it gave inspectors wide discretion in determining what constituted obscenity. The act also allowed for the destruction of any materials confiscated, further limiting the circulation of potentially objectionable content.

Comstock, who was appointed as a special agent of the USPS, used his new authority to lead an aggressive campaign against the dissemination of obscene materials and the promotion of abortion. He claimed to have confiscated and destroyed hundreds of thousands of such items, and his zealous efforts earned him both admiration and criticism.

Challenges, impact, and controversy

The Comstock Act faced challenges from advocates of free speech, who argued that the government’s definition of obscenity was vague and subjective, leading to the suppression of constitutionally protected expression. Critics also pointed out that the act’s provisions on contraception and abortion had little to do with obscenity and instead served to impose a particular moral viewpoint on the public.

From a pro-life perspective, the Comstock Act’s restrictions on abortion information can be seen as an important measure to protect the sanctity of life. By prohibiting the distribution of information on abortion, the Comstock Act effectively limited the accessibility and promotion of a procedure that was harmful to both women and unborn children.

Changes in society’s views of morality, however, brought the act’s provisions on contraception and abortion came under increasing scrutiny. The U.S. Supreme Court, in a series of landmark decisions, began to chip away at the act’s restrictions.

In 1965, the court ruled in Griswold v. Connecticut that a state law banning the use of contraceptives by married couples was unconstitutional, as it violated the right to privacy. This decision marked a turning point in the legal expansion of rights related to individual privacy.

In 1971, the court further undermined the Comstock Act in United States v. Vuitch, which dealt with the issue of abortion. The court held that a District of Columbia law criminalizing abortion except when the mother’s life or health was endangered was unconstitutionally vague. This ruling paved the way for the Court’s landmark 1973 decision in Roe v. Wade, which established the constitutional right to abortion.

These decisions significantly undermined the moral values the Comstock Act was passed to uphold. In particular, the erosion of the act’s restrictions on abortion information and access is believed to have helped lead to a devaluation of the sanctity of life and an increase in the number of abortions performed in the United States.

A mostly forgotten, but enduring legacy

From 1873 until today, the Comstock Act has had a lasting influence on American society, shaping the discourse on morality, censorship, and the sanctity of life for 150 years. The act represented an early and aggressive attempt by the government to regulate the content of printed materials and control access to information on obtaining and conducting an abortion.

The role of government: The act’s legacy can be seen in the continuing debate over the proper role of government in regulating obscenity. Although the Comstock Act’s provisions regarding obscenity have been largely dismantled, the tension between the desire to protect public morality and the need to safeguard individual freedoms remains a central issue in the modern era.

Shaping attitudes: An often unnoticed influence of the act is the role it played in shaping attitudes towards the sanctity of life and the value of children. The restrictions on abortion imposed by the Act contributed to a culture that viewed children as intrinsically valuable and sought to protect preborn children. The struggle to dismantle these restrictions laid the groundwork for the modern pro-life movement, which continues to fight for the protection of preborn children and the promotion of alternatives to abortion.

Although largely forgotten today, the Comstock Act of 1873 was a pivotal piece of legislation that had a profound influence on American society and the pro-life cause. While many of its provisions have been removed or undermined, the act’s legacy remains—as the recent abortion pill ruling shows—relevant to the ongoing debates over abortion in America.

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24