Anthony Comstock: A Religious Fundamentalist's Negative Impact on Reproductive Health

Religion as a Social Determinant of Public Health (Ellen L. Idler ed., Oxford University Press, 2014)

Georgia State University College of Law, Legal Studies Research Paper No. 2014-34

Posted: 2 Oct 2014 Last revised: 28 Apr 2015

See all articles by Lynn Hogue

Lynn Hogue

Georgia State University - College of Law

Carol Hogue

Independent

Date Written: 2014

Abstract

Lynn and Carol Hogue, “Anthony Comstock: A Religious Fundamentalist's Negative Impact on Reproductive Health,” in Religion as a Social Determinant of Public Health, Ellen L. Idler ed. (Oxford University Press, 2014) examines two interrelated issues in public health law — the destructive effects of religious fundamentalism when it is harnessed with the coercive power of the state, and the deconstruction of the Comstockian project by the evolution of constitutional doctrine.

Religious fundamentalism promoted an anachronistic, anti-intellectual and anti-scientific bias by militantly asserting a crabbed view of family relations — particularly views regarding gender, sex roles, the nurturing and educating of children and human sexuality activity. Those views crossed a fraught boundary when imposed by law on non-adherents. Anthony Comstock, a ninetieth-century activist, mounted a religious crusade, ostensibly to protect children, which harnessed the federal power to regulate the mail to suppress the circulation of information about sex and human sexuality. For Comstock, any information about human anatomy that included the sex organs would serve as an inducement to immorality, a vicious progression from masturbation to promiscuous non-marital sex, to the demand for and use of contraceptives to avoid pregnancy, and either to abortion or the “burden” of bastards and resultant social opprobrium.

Comstockery, as the movement became known, “had profound implications for human reproduction and reproductive health in the United States. There are three necessary conditions for effective family planning: the will to control fertility, appropriate contraceptive technology to avoid conception, and information about how to access and use that technology.” (p. 160) In the nineteenth century all three of these conditions came together; the will to limit family size, already present as couples sensed the value of fewer children, information about how to limit births published by medical professionals for lay readers, and technological innovations that made contraceptives, particularly condoms, widely available. Comstock’s project struck a disastrous blow to fertility control by it impossible to mail information about sex and birth control as well as contraceptives and abortifacients. The negative public health impact of Comstockery was clear:

“For nearly a century, public health investigators have known that maternal and infant mortality is higher when childbearing begins at too early an age or continues when the mother is older or physically impaired. For even the healthiest women, pregnancies occurring in rapid succession are more likely to end poorly for the mother and baby than are pregnancies spaced two to three years apart. Family planning, then, has a tremendous positive impact on individual and public health.” It saves lives by avoiding an estimated 1.2 million infant deaths annually. (p. 168)

A difficult, slow-moving, piecemeal process eventually resulted in the emergence of a robust doctrine of privacy, the creation of a First Amendment doctrine that protected information about sex, family planning and abortion by preventing the government from classifying any information about sex and human reproduction as obscene that ultimately brought about the constitutional deconstruction of the legal framework supporting Comstock’s fundamentalist religious project.

In a series of cases, courts — particularly the Supreme Court — accepted the idea that a physician, guided by the primary consideration of the health of his or her patient, would be justified in prescribing even prohibited medical devices, like condoms, or contraceptive drugs. Putting the health of a woman first produced a groundbreaking medical exception to the Comstock laws that at least allowed birth control clinics to function. That medical exception for the health of the patient would resonate importantly in later abortion rights decisions, including Roe v. Wade (1973) and Planned Parenthood of Southwestern Pennsylvania v. Casey (1992). As the social, political and religious consensus that supported Comstockery gradually faded, courts were able to continue their complicated and disjointed doctrinal deconstruction effort. The emergence of a constitutional right of sexual privacy in Griswold v. Connecticut (1965) ended the prohibition on the use of contraceptives (a state-level implementation of Comstock’s federal project), a right expanded in Eisenstadt v. Baird (1972) to include unmarried persons (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”) The Supreme Court would eventually complete the deconstruction of Comstockery by protecting the right of minors to contraceptives, Carey v. Population Services International (1977).

The Comstock laws made disseminating information about sex a criminal act by defining anything about sex as obscene. In the nineteenth century, a weak and largely undeveloped First Amendment provided no protection for scientific, technical information about sex provided to a lay audience. Beginning with Roth v. United States (1957), the Supreme Court concluded that sex and obscenity were not synonymous. The previously expansive definition of obscenity was narrowed in Miller v. California (1973) and contemporary community standards replaced Comstock’s national ones. Visual depictions of human anatomy came to enjoy protection; people could now literally see what was talked about, and the Supreme Court eventually held in Shad v. Mount Ephraim (1981) that “’Nudity alone’ does not place otherwise protected material outside the mantle of the First Amendment.” At this point “Comstockery’s use of obscenity laws to restrict information about sex and human reproduction was effectively nullified.” (p. 166)

A key component of the federal Comstock law was prohibition on the use of the mails to disseminate information about sex or advertisements for devices like condoms that related to sex that could therefore be made criminal because sexual matters were considered obscene. A reframing of the First Amendment doctrine on commercial speech that allowed the advertising of legal abortion services in Bigelow v. Virginia (1975) eventually led the Supreme Court to strike down a federal ban on the mailing of contraceptive advertisements, Bolger v. Young’s Drug Products Corporation (1983), a direct blow at last to Comstock’s law.

Abortion remains as a vestigial remnant of Comstockianism. The relative safety of legal abortion for women (legal abortion is safer for women than carrying a pregnancy to term and risking death from childbirth) led the Supreme Court to decide in Roe v. Wade (1973) that women had a constitutional right to make decisions about their health even extending to decisions about whether or not to bear a child. Studies show that the Roe decision did not increase the number of abortions, but merely substituted safe for unsafe abortions. This had substantial public health benefits. For example, it is estimated that in 1960, one in five pregnancies were terminated by unsafe, illegal abortions resulting in as many as five thousand women’s deaths annually. By contrast, for example, only twelve maternal deaths attributed to abortion were reported in 2008.

Although Comstockery was largely deconstructed over the last half of the twentieth century, it has enjoyed a twenty-first century revival in the efforts of neo-Comstockians to limit access to Plan B One-Step, as a nonprescription morning-after contraceptive pill available to all women and girls without age restriction. Plan B is a safe and effective contraceptive pill that prevents conception if taken within seventy-two hours after sexual intercourse. The limit on access was pursued by religiously driven fundamentalists in the FDA appointed during the administration of President George W. Bush was ultimately struck down. The Plan B episode demonstrates the continuing danger to public health posed by the unholy alliance of government regulation with those who view sex “through the lens of fundamentalist religious presuppositions [divorcing] human reproduction from science.” “In today’s global village, 220 million women seek contraceptive services that they cannot obtain due in large measure to the ongoing, corrosive influence of religious fundamentalism on unwilling non-adherents through state coercion.” (p. 170)

Keywords: reproductive rights, legal history, Comstock, abortion, birth control, contraception, fundamentalism, public health, public health law, health law, constitutional law, Constitution

JEL Classification: I18, I19, K10, K19, K32, K30, K39

Suggested Citation

Hogue, Lynn and Hogue, Carol, Anthony Comstock: A Religious Fundamentalist's Negative Impact on Reproductive Health (2014). Religion as a Social Determinant of Public Health (Ellen L. Idler ed., Oxford University Press, 2014), Georgia State University College of Law, Legal Studies Research Paper No. 2014-34, Available at SSRN: https://ssrn.com/abstract=2497203

Lynn Hogue (Contact Author)

Georgia State University - College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

Carol Hogue

Independent ( email )

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