The sudden interest in the Comstock law of 1873 — an “anti-vice” measure being invoked by abortion opponents — is a moment to reflect on the career of the law’s namesake, Anthony Comstock. The crusade by the persnickety postal inspector against “indecency,” via his New York Society for the Suppression of Vice, made him a bête noir of the Sun. Plus, too, Comstock’s career could be a cautionary tale for today’s conservatives.

The spotlight on Comstock arises from the ruling of a federal district court judge that the 150-year-old law, still on the books, bars sending what the judge calls “chemical abortion drugs by mail.” The Biden administration is appealing. The dean of the Times’ columnists, Michelle Goldberg, calls the law’s use today a “hideous resurrection,” a sign that “the prurient sanctimony that George Bernard Shaw called ‘Comstockery’ is running rampant.”

Yet Judge Matthew Kacsmaryk of the federal district in northern Texas, reckons Comstock’s law renders as “nonmailable matter” every “obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance,” including articles used “for producing abortion.” * At one point Congress named Comstock himself to serve as a “special agent” in the Post Office to enforce the law. An “official commission as a censor,” sneered the Sun.

Comstock held the post until his death in 1915. His postal perch, and his role at the anti-vice society, gave Comstock wide influence — the Sun called it “despotic power” — over cultural life. In 1887 he arrested a high-end art gallerist, Edmond Knoedler, for selling photographs that were, a Sun editorial said, “in the opinion of” Comstock’s “meddlesome society,” to be “indecent” for their “representation of the undraped human form.”

“We are living in an age of corruption,” Comstock lamented in 1889. A Sun editorial deplored “so gloomy a view,” suggesting that it followed from “hunting after corruption” and spending “his life in its mephitic surroundings.” He sought “unclean things with the keenness and pertinacy of a terrier after a rat,” the Sun said, and “lost the habit of lifting his head to breathe the proper moral atmosphere” in which most “are so happy as to live.”

Which brings us back to Judge Kacsmaryk and Ms. Goldberg’s fears that the states, “as if inspired” by Comstock, “are outdoing one another in draconian censorship.” We’re not arguing that the Comstock law — and its abortion clauses — should not be enforced. The Comstock law, after all, is, until it is found by a court to be unconstitutional or repealed by Congress, part of what the Constitution defines as the Supreme Law of the Land. 

There are lots of laws that we use every day that were passed long before Comstock — including, say, the Judiciary Act of 1789, which set up our court system and our Department of Justice. So being old doesn’t in itself make a law obsolete, and Judge Kacsmaryk wasn’t wrong to invoke it. What we are saying is that it may well turn out as hard to legislate national morality as it is to hand it down by judicial decree.

In 1887, the Sun noted, “societies of cranky busybodies” were “multiplying the legal offenses for which the people of” New York “might be called to account.” Comstock et al became “petty tyrants acting under the authority of intolerable legislation.” It was because New Yorkers “were tired of the legislation that makes it possible that the people of New York so emphatically rebuked the Republican party at the last election.”

That last election was the city’s vote of 1886, when Abram Hewitt, “an old-fashioned Jackson Democrat, for low tariffs and hard money,” as Richard Brookhiser puts it, defeated a young Republican assemblyman, Teddy Roosevelt. It followed the general election of 1884, when the Democrat, Grover Cleveland, beat ex-speaker of the House, James Blaine of Maine, who was the GOP’s chief backer in Congress of the Comstock law.

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* The original text of the Comstock law originally included a ban on sending through the mail any information about or materials “for the prevention of conception”; this language was struck by a law enacted in 1971.