Proposed Federal Abortion Ban Evokes 19th Century Comstock Act — a Law So Unpopular it Triggered the Century-Long Backlash that Led to Roe

Amy Werbel • April 11, 2023

Sen. Lindsey Graham has proposed a national U.S. abortion ban barring the procedure after 15 weeks. This push to restrict abortion access across the country follows a rash of new state laws passed by Republicans after the Supreme Court overturned Roe v. Wade in June.

If American history is any guide, these efforts will ultimately neither reduce abortions nor remain settled law.

I am a historian who has studied American culture and law in the wake of the 1873 Comstock Act – the first U.S. effort to restrict access to birth control and abortions. My research finds that previous state and federal efforts to regulate the sexual expression and reproduction of Americans led to unintended consequences – and, in the long term, these laws failed.

Already, I see signs that new anti-abortion laws are triggering a similarly undermining backlash.

How ‘obscene’

In 1873, Congress hurriedly passed a law making it illegal to send “obscenities” through the U.S. mail. The legislation was branded the Comstock Act after its most vigorous proponent: Anthony Comstock , a U.S. postal inspector and evangelical Christian who believed sexual activity was a sin unless it occurred between a married man and woman for the purpose of procreation.

Birth control and substances used to induce abortion were included in the definition of “obscenity,” because Comstock and his supporters believed that life and death were God’s decisions. The law also banned mailing erotic images and literature. In Comstock’s expansive view, this category included images of athletes wearing tights.

State versions of the original Comstock Law soon swept the United States. By 1900, 42 states had passed similar legislation outlawing the production, sale, possession or circulation of “obscene” matter in their own jurisdictions.

These statutes ruled until the Supreme Court declared a right to privacy in medical decision-making nearly 100 years later, in Griswold v. Connecticut (1965).

This is the same ruling that was cited eight years later to protect the right to have an abortion in the now defunct Roe v. Wade.

Impractical enforcement

Comstock zealously enforced the laws he’d advocated for, both as a detective for the privately funded New York Society for the Suppression of Vice, and as an inspector for the U.S. Post Office Department. In attempting to eradicate contraceptives – including condoms and early forms of diaphragms – Comstock organized the arrests of numerous defendants.

However, he had difficulty getting prosecutors, juries and judges to see the seriousness of many of the “crimes” he investigated. In the late 19th century, wealthier Americans already regularly used birth control.

“Of all the indictments prior to 1878, pending in the Court of General Sessions, not one has been tried the past year,” Comstock wrote in his 1879 annual report for the society.

In one of these cases, The New York Times reported , Comstock was chastised by a New York City district attorney named Phelps for his “sharp practice” in investigating Dr. Sarah Blakeslee Chase. These included his posing as a client to obtain birth control products and repeatedly harassing the suspect. A grand jury threw out the case, stating that it “did not think it for the public good.”

Even when Comstock obtained a conviction, many defendants were pardoned immediately.

Enforcing new anti-abortion laws is similarly unpopular with many legal professionals today. Shortly after the Supreme Court issued its opinion in Dobbs, more than 80 elected prosecutors vowed not to bring indictments in cases involving abortion.

As they recognize, conservative courts in jurisdictions with zealous anti-abortion prosecutors – who in some states are already enforcing new laws – will soon be filled with a host of extremely sympathetic defendants: relatives who assist children who are victims of rape in obtaining an illegal abortion, doctors saving the lives of mothers at risk , and those who choose to help pregnant cancer patients in making the best possible decisions for their health.

Enforcement of America’s new Comstock laws will likely once again make witnesses and defendants more sympathetic in the eyes of judges and jurors – and the public – undermining whatever support remains for these laws.

Beyond prosecutions, the tactics necessary to prevent women from obtaining abortions are even less practical today than they were in the late 19th century.

Enforcing anti-abortion laws may include restricting interstate travel , blocking interstate and international postal services and attempting to censor information about sexual health. All of these would require laborious investigations and extensive cooperation from law enforcement agencies and private corporations who will likely have little desire to involve themselves in unpopular prosecutions.

And that’s assuming that any of these methods survive court challenges.

Uniting disparate factions

By the time of Anthony Comstock’s death in 1915, backlash to his zealous overreach had provoked growing solidarity among activists and attorneys determined to defeat his agenda.

Women’s rights activists, including Margaret Sanger, Emma Goldman and Mary Ware Dennett – formerly focused on competing goals and strategies – joined in common cause to repeal the Comstock laws. Their efforts led to the creation of new and powerful national civil liberties organizations, including Planned Parenthood and the American Civil Liberties Union. Both used lobbying and lawsuits to contribute to the death of the original Comstock laws.

These groups are still fighting new abortion restrictions today. And once again, post-Dobbs, disparate individuals and groups are raising their voices in common cause.

Obstetricians from around the country have begun lobbying politicians and forming their own pro-choice political action committees for the first time. TikTok influencers like Olivia Julianna are rallying young citizens to vote for pro-choice politicians. And diverse podcasters , from one-time provocateur Howard Stern to the hosts of the true crime show “My Favorite Murder,” are sharing resources with their listeners and expressing support for abortion rights.

Ballot box backlash

Newly registered and energized voters are turning out to support candidates and ballot initiatives that reflect the nation’s majority support for abortion rights.

Kansas roundly rejected an anti-abortion referendum in August 2022. And more states will soon vote on state constitutional protections for abortion, including Michigan.

The Comstock laws were not repealed quickly. And it’s now clear that American women’s right to reproductive health care remained tenuous after their demise.

Viewing the past as prologue, however, suggests that, once again, unpopular anti-abortion laws will cause unintended consequences that, in the long run, will render them both ineffective and ultimately futile.The Conversation

Amy Werbel , Professor of the History of Art, Fashion Institute of Technology (FIT)

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Common Sense for the Eastern Shore

By CSES Staff October 24, 2025
 Sparking alarm among housing advocates, social workers, and residents, Salisbury Mayor Randy Taylor has announced plans to gut Salisbury’s nationally recognized Housing First program, signaling a break from years of bipartisan progress on homelessness. Created in 2017 under then-Mayor Jacob Day, the initiative was designed around a simple but powerful principle: that stable, permanent housing must come first before residents can address problems with employment, health, or recovery. The program was designed to provide supportive housing for Salisbury’s most vulnerable residents — a model backed by decades of national data showing it reduces homelessness, saves taxpayer dollars, and lowers strain on emergency services. But under Taylor’s leadership, that vision appears to be ending. In a letter to residents, the City of Salisbury announced that the Housing First program will be shut down in 2027, in effect dismantling one of the city’s long-term programs to prevent homelessness. Taylor says he plans to “rebrand” the program as a temporary “gateway to supportive housing,” shifting focus away from permanent stability and toward short-term turnover. “We’re trying to help more people with the same amount of dollars,” Taylor said. Critics call that reasoning deeply flawed, and dangerous. Former Mayor Jacob Day, who helped launch the initiative, says that Housing First was always intended to be permanent supportive housing, not a revolving door. National studies show that when cities replace permanent housing programs with short-term placements, people end up right back on the streets, and that costs taxpayers more in emergency medical care, policing, and crisis intervention. Local advocates warn that Taylor’s move will undo years of progress. “This isn’t just a policy shift, it’s a step backward,” one social service worker said. “Housing First works because it’s humane and cost-effective. This administration is turning it into a revolving door to nowhere.” Even some community partners who agree the program needs better oversight say that Taylor is missing the point. Anthony Dickerson, Executive Director of Salisbury’s Christian Shelter, said the city should be reforming and strengthening its approach, not abandoning its foundation. Under Taylor’s proposal, participants could be limited to one or two years in housing before being pushed out, whether or not they’re ready. Advocates fear this change could push vulnerable residents back into instability, undoing the progress the city was once praised for. While Taylor touts his plan as a way to “help more people,” critics say it reflects a troubling pattern in his administration: cutting programs that work. For years, Salisbury’s Housing First initiative has symbolized compassion and evidence-based leadership and has stood as a rare example of a small city tackling homelessness with dignity and results. Now, as Taylor moves to end it, residents and advocates are asking a simple question: Why would a mayor tear down one of Salisbury’s most successful programs for helping people rebuild their lives?
By John Christie October 24, 2025
On the first Monday of October, the Supreme Court began a new term, Term 2025 as it is officially called. The day also marked John Roberts’ 20 years as Chief Justice of what history will clearly record as the Roberts Court. Twenty years is a long time but at this point, Roberts is only the fourth longest serving Chief Justice in our history. John Marshall, the fourth and longest, served for 34 years, 152 days (1801–35). Roger Brooke Taney, served for 28 years, 198 days (1836–64). Melville Fuller, served 21 years, 269 days (1888 to 1910). John Roberts was originally nominated by George W. Bush to fill the seat held by the retiring Sandra Day O’Connor but, upon the unexpected death of William Rehnquist, Bush instead nominated Roberts to serve as Chief Justice. His nomination was greeted by enthusiasm and high hopes in many quarters. He was young, articulate, personable, and highly qualified, having had an impressive academic record, experience in the Reagan administration and the private bar, and service on the federal D.C. Court of Appeals for two years. His “balls and strikes” comment at his confirmation hearing struck many as suggesting judicial independence. He sounded as well very much like an institutionalist, having said at an early interview that “it would be good to have a commitment on the part of the Court to act as a Court.” Whatever else might be said 20 years later about the tenure of John Roberts as Chief Judge, the Supreme Court is no doubt much less popular and much more divisive today than it was on September 29, 2005, when he was sworn in as the 17th Chief Justice by Justice John Paul Stevens, then the Court’s most senior associate justice, and witnessed by his sponsor, George W. Bush. Gallup’s polling data shows popular support for the Court now at the lowest levels since they started measuring it. In July 2025, a Gallup poll found that, for the first time in the past quarter-century, fewer than 40% of Americans approved of the Supreme Court’s performance. According to Gallup, one major reason that approval of the Supreme Court has been lower is that its ratings have become increasingly split along party lines — the current 65-point gap in Republican (79%) and Democratic (14%) approval of the court is the largest ever. The legal scholar Rogers Smith wrote in The Annals of the American Academy of Political and Social Science in June, “Roberts’s tenure as Chief Justice has led to the opposite of what he has said he seeks to achieve. The American public now respects the Court less than ever and sees it as more political than ever.” These results signify more than simply a popularity poll because a Court without broad public support is a Court that will not have the same public respect upon which their most important decisions have historically depended. And, whatever the reasons for this development, it has happened on John Roberts’s watch. There is no better example of the current divisiveness on the Court than the remarkable string of “emergency” rulings on the Court’s so-called shadow docket since January 20. The extent of ideological and partisan differences has been sharp and extreme. The conservative majority’s votes have frequently been unexplained, leaving lower court judges to have to puzzle the decision’s meaning and leaving the public to suspect partisan influences. And the results of these shadow docket rulings have had enormous, sometimes catastrophic, consequences: Removing noncitizens to countries to which they had no ties or faced inhumane conditions Disqualifying transgender service members Firing probationary federal workers and independent agency heads Ending entire governmental departments and agencies without congressional approval Allowing the impounding of foreign aid funds appropriated by Congress Releasing reams of personal data to the Department of Government Efficiency Allowing immigration raids in California based on racial and ethnic profiling John Roberts has written many Supreme Court opinions in his 20 years as Chief Justice. At the 20-year mark, the most important, to the nation and to his legacy, will likely be his opinion in the Trump immunity case, which changed the balance of power among the branches of government, tipping heavily in the direction of presidential power. Trump v. United States (2024). In her dissent from his majority opinion in that case, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, warned about the consequences of such a broad expansion of presidential power. “The Court effectively creates a law-free zone around the president,” upsetting the status quo that had existed since the nation’s founding and giving blanket permission for wrongdoing. “Let the president violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. In every use of official power, the president is now a king above the law.” Roberts claimed in his majority opinion that the “tone of chilling doom” in Sotomayor’s dissent was “wholly disproportionate” to what the ruling meant. However, Sotomayor’s words have proved prescient: the breadth of power that Trump and his administration have asserted in the months since he was sworn in for his second term has made plain how boundlessly they now interpret the reach of the presidency in the wake of the Roberts opinion. Despite the early “balls and strikes” comment, the assessment of John Roberts’ long term judicial record suggests something different as seen by several distinguished legal commentators from significantly different perspectives. As summarized by Lincoln Caplan, a senior research scholar at Yale Law School, in a new retrospective article on Robert’s 20-year tenure, “From his arrival on the Court until now, his leadership, votes, and opinions have mainly helped move the law and the nation far to the right. An analysis prepared by the political scientists Lee Epstein, Andrew Martin, and Kevin Quinn found that in major cases, the Roberts Court’s record is the most conservative of any Supreme Court in roughly a century.” “What Trump Means for John Roberts's Legacy,” Harvard Magazine , October 8, 2025. Steve Vladeck, Georgetown Law Center professor and a regularly incisive Court commentator, characterized the 20-year Roberts’ Court as follows: “The ensuing 20 years has featured a Court deciding quite a lot more than necessary — inserting itself into hot-button social issues earlier than necessary (if it was necessary at all); moving an array of previously settled statutory and constitutional understandings sharply to the right; and, over the past decade especially, running roughshod over all kinds of procedural norms that previously served to moderate many of the justices’ more extreme impulses.” “The Roberts Court Turns Twenty,” One First , September 29, 2025. In another remarkable new article by a widely respected conservative originalist, similar concerns about the present Court have very recently been expressed. Caleb Nelson, who teaches at the University of Virginia and is a former law clerk to Justice Clarence Thomas, has written that the text of the Constitution and the historical evidence surrounding it in fact grant Congress broad authority to shape the executive branch, including by putting limits on the president’s power to fire people. “Must Administrative Officers Serve at the President’s Pleasure?” Democracy Project, NYU LAW , September 29, 2025. When the First Congress confronted similar ambiguities in the meaning of the Constitution, asserts Nelson, “more than one member warned against interpreting the Constitution in the expectation that all presidents would have the sterling character of George Washington.” Nelson continues, “The current Supreme Court may likewise see itself as interpreting the Constitution for the ages, and perhaps some of the Justices take comfort in the idea that future presidents will not all have the character of Donald Trump. But the future is not guaranteed; a president bent on vengeful, destructive, and lawless behavior can do lasting damage to our norms and institutions.” John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes. 
By Jan Plotczyk October 24, 2025
If you’ve ever wondered just how slavishly loyal Rep. Andrew P. Harris (R-MD01) is to President Donald Trump, you can now put a number on it! Just consult the Republican National Platform Ratings. When you do, you will find that Rep. Harris has a very high overall score: 90.38%. He is the most aligned with the Trump/GOP platform among Maryland’s congressional representatives. No surprise there. Among all U.S. senators and representatives (using 2024 votes), Harris is 43rd most aligned. One might expect more from the chair of the right-wing Freedom Caucus. Harris scores at 90.38% aligned overall. His ratings by topic range from 82.98% to 100%. The topics refer to chapters in the platform: Defeat inflation and quickly bring down all prices. Seal the border and stop the migrant invasion. Build the greatest economy in history. Bring back the American Dream and make it affordable again for families, young people, and everyone. Protect American workers and farmers from unfair trade. Protect our Constitution and seniors. Cultivate great K-12 schools leading to great jobs and great lives for young people. Bring common sense to our government and renew the pillars of American civilization. Government of, by, and for the people. Return to peace through strength. Here are all Harris’s scores:
By CSES Staff October 24, 2025
Several thousand people turned out on Oct. 18 in communities across the Eastern Shore to participate in the national “No Kings Day” protests, joining thousands of simultaneous events nationwide opposing the policies of President Trump’s administration. Demonstrations were held in Salisbury, Ocean City, Easton, Cambridge, Chestertown, and Centreville. These gatherings were part of a broader coalition effort that organizers say reflects frustration with the administration’s direction and a demand for renewed accountability and democracy. Participants across the Shore held signs and expressed concerns about immigration enforcement, executive power, and transparency in government. In jurisdictions that lean Republican and supported Trump in 2024, the rallies underscore a growing discrepancy between voting patterns and present activism. For example, in Queen Anne’s County — where the Trump vote was strong — residents joined the demonstration with statements of surprise at the turnout. Despite the scale of national mobilization, local organizers emphasized that the protest is rooted in community values of fairness, participation, and civic voice. One organizer on the Shore described the event as a reminder that “when people choose to show up, they remind their communities what democracy looks like.” Authorities reported no major disruptions during the Shore events, and police in some areas confirmed the rallies proceeded peacefully. For many in the region, the demonstrations mark an opening moment for more active civic engagement on the Shore, one that observers say could reshape local politics in counties historically seen as less partisan.
By CSES Staff October 24, 2025
The Maryland Democratic Party has launched a statewide initiative, Contest Every Seat, that aims to recruit candidates to run for public office across all levels of government ahead of the 2026 elections. Party officials say the goal is to ensure voters in every district across Maryland have a choice on the ballot. The program will include outreach, training sessions, and support for prospective candidates considering campaigns for local, county, and state positions. “The effort is designed to encourage Marylanders who want to make change in their communities to step up and take action,” the party announced. Interested individuals can visit mddems.org/run for information about the application process and training opportunities. The Maryland Democratic Party said similar initiatives in past election cycles helped increase candidate recruitment in local and rural areas, including the Eastern Shore.
By CSES Staff October 24, 2025
With the federal government now shut down for more than three weeks, Maryland is losing hundreds of thousands of dollars in revenue daily, a reflection of the state’s deep economic ties to the federal workforce. According to the Maryland Comptroller, approximately 230,000 Marylanders work directly for the federal government, with an additional 200,000 employed by federal contractors. The state’s economy, long intertwined with the operations of nearby federal agencies, is feeling the strain as paychecks stall and agencies close. Comptroller Brooke Lierman estimates Maryland is losing about $700,000 in state revenue each day — roughly one percent of the state’s average daily revenue of $100 million. “That is a small piece of our overall state budget,” Lierman said, “but as long as all our federal workers are paid what they are owed, that money will get back to us.” Federal employees generally receive back pay after shutdowns end, but recent statements from President Trump suggesting that furloughed workers may not be repaid have created uncertainty. More than 150 members of Congress, including Maryland’s entire Democratic delegation, signed a letter this week urging the Trump administration to guarantee back pay under the 2019 Government Employee Fair Treatment Act, which requires compensation for federal employees affected by a shutdown, and which Trump himself signed into law. Rep. Sarah Elfreth (D-MD03) said Congress is prepared to defend those protections. “Denying that pay would be illegal, and we will use every tool we have — both in Congress and in the courts — to ensure federal employees are made whole,” she said. During the 35-day federal shutdown in 2019, Maryland lost more than $13 million daily in economic activity and over $550,000 daily in tax revenue, according to state data. This latest shutdown comes amid broader federal workforce reductions under the U.S. Department of Government Efficiency, which announced layoffs earlier this year. A federal judge temporarily halted further cuts on Oct. 15 following a legal challenge. The effects extend beyond government offices. Universities such as Johns Hopkins and the University of Maryland Baltimore Washington Medical Center report disruptions to federally funded research projects and grant cycles. Gov. Wes Moore has directed state agencies to provide emergency support to furloughed federal workers, including housing and utility assistance. On Oct. 17, Moore announced the Maryland Transit Administration will offer free MARC and commuter bus rides to federal employees who show valid government ID. “This is what Maryland does in times of crisis, we band together and help each other out,” Moore said. “But no state can fill the gap created by the federal government. The longer this shutdown lasts, the more pain we will feel.” There is no indication of when negotiations in Washington to end the shutdown will resume.
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