Is Todd Blanche Going to Drop the Cold, Dead Hand of Anthony Comstock on America’s Women if He's Confirmed?

So, what the heck is the Comstock Act and why is Todd Blanche so enthusiastic about it?

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Todd Blanche is campaigning to become our real, confirmed Attorney General, presumably so he can better help Donald Trump, his corrupt family, and the 13 billionaires in his cabinet make off with as much of our money as they can.

Most recently, his campaign took him to the rightwing “religious” group Intercessors for America. When he was asked about progress in totally ending legal abortion in America, or at least Red State America, he told them:

“We don’t have complete victory yet, but we will have victory, and victory will be soon, and and it will be permanent.”

He added, later in the call:

“If states have said, ‘We are going to protect the unborn and we’re going to protect every life from the moment of conception,’ we’re putting practices and policies in place so that other states and other organizations can’t attack that. They can’t do things like they’re doing with mailing in mail-order drugs.”

So, how’s he going to pull this off? His sworn testimony before Congress may offer us a glimpse into the plan.

Ted Cruz asked him:

“18 USC 24 Section 1461, the Comstock Act, provides that every article or thing designed or adapted or intended for producing abortion is declared to be non-mailable. I have to admit that statutory text to me looks quite straightforward. It is not subtle. It is not difficult. It is straightforward. …

“[W]ill you commit that the Department will carefully evaluate every lawful action available to ensure the faithful enforcement of the Comstock Act and other Federal pro-life acts?”

Blanche answered: “Yes.”

How does he plan to “protect every life from the moment of conception”? Apparently, with the Comstock Act. And he may well have the backing of the six Republicans on the Supreme Court as their next step after their Dobbs decision.

Back during oral arguments before the Supreme Court in March of 2024, the Comstock Act was invoked repeatedly by Sam Alito, Clarence Thomas, and Erin Hawley, the wife of Republican Senator Josh Hawley, who was the lawyer arguing before the Court that the abortion drug, Mifepristone, should be banned nationwide.

Justice Sam Alito said:

“This [Comstock Act] is a prominent provision. It’s not some obscure subsection of a complicated, obscure law. Everybody in this field knew about it.”

Erin Hawley was emphatic:

“We don’t think that there’s any case of this court that empowers FDA to ignore other federal law. The Comstock Act says that drugs should not be mailed … either through the mail or through common carriers.”

And Clarence Thomas laid out the possibility of future litigation when he essentially threatened the lawyer for Danco Laboratories, the manufacturer of Mifepristone:

“How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” He went on to note that the law “is fairly broad, and it specifically covers drugs such as yours.”

In other words, they want the Act enforced today.

So, what the heck is the Comstock Act and why are Republicans trying to revive it before the Supreme Court and in threatening letters to pharmacy chains?

You’ve probably never heard of Anthony Comstock, a Civil War Union soldier and New York Postmaster, who died in 1915. You need to learn about him and his legacy, however, as his long fingers are about to reach up out of the grave and wrap themselves around the necks of every American woman of childbearing years.  

Anthony Comstock was a mama’s boy who hated sex. His mother died when he was 10 years old and the shock apparently never left him; women who didn’t live up to her ideal were his open and declared enemies, as were pornography, masturbation, and abortion. He was so ignorant of sex and reproduction that he believed a visible human-like fetus developed “within seconds” of sexual intercourse.

Comstock spent decades scouring the country collecting hard-core pornography, which he enthusiastically shared with men in Congress, and harassing “loose women.” For example, when he visited a belly-dancing show (then a new craze) in Chicago at the Cairo Theatre during the World’s Fair of 1893, he demanded the show be shut down.

As Amy Sohn, who wrote a brilliant Comstock biography titled The Man Who Hated Women, noted:

“Despite national controversy and Comstock’s intervention, ultimately the only alteration made to the fair’s belly dancing was costuming: the dancers swapped their gauze blouses for thin woolen undershirts. The vice hunter had lost in Chicago. But he would not forget the dancers, and would have four of them arrested and fined when they came to New York that winter. New York, after all, was Comstockland.”

Comstock lobbied for and shepherded through Congress a law passed on March 3, 1873 titled “An Act for the Suppression of Trade in, and Circulation of, obscene Literature and Articles of immoral Use.” Today we refer to it as the Comstock Act.

It’s language with regard to abortion is not at all ambiguous:

“Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance … designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

“Every 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, or for any indecent or immoral purpose; and

“Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

“Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

“Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

“Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” (emphasis mine)

The penalty is also not ambiguous. Persons mailing information about abortion, or drugs or devices to produce an abortion:

“[S]hall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.” (emphasis mine)

The Biden administration argued that the Comstock Act of 1873 was set aside almost a century ago.

And, indeed, in 1930, the Appeals Court for the Second Circuit ruled in Youngs Rubber Corp. v. C.I. Lee & Co that the law couldn’t apply to things sent through the mail that are legal, even if they were illegal at the time of the passage of the Comstock Act. (The case involved condoms manufactured by Youngs Rubber Company.)

“Such a construction,” the Court wrote, “would prevent mailing to or by a physician of any drug or mechanical device ‘adapted’ for contraceptive or abortifacient uses, although the physician desired to use or to prescribe it for proper medical purposes.”

The law has been amended by Congress four times (in 1955, 1958, 1971, and 1994), but the language above about abortion was never struck because legislators figured the 1930 appeals court’s ruling rendered it nugatory.

But don’t tell that to Trump’s appointee, Texas District Judge Matthew Kacsmaryk of Amarillo, who ruled in 2023 that Mifepristone was to be banned nationwide: he based a large part of his decision on the plain language of the Comstock Act.

Republican members of Congress agree, and want the Comstock Act enforced nationwide now. They think they don’t even need a ruling from the Supreme Court: they just need Todd Blanche to “enforce the law already on the books.”

In a letter sent to CVS (among other pharmacy chains), Mississippi Republican Senator Cindy Hyde-Smith and eight other Republican senators (Lankford, Daines, Braun, Rubio, Marshall, Risch, Crapo and Blackburn) wrote that the Biden interpretation (and that of Congress in 1955, 1958, 1971, and 1994) is wrong.

They explicitly asserted that the Comstock Act is still in effect and they want it enforced:

“We write to express our support and agreement with 21 [Republican] State Attorneys General,” they wrote “who have reminded you that Federal law in 18 U.S.C. 1461-1462 [the Comstock Act] criminalizes nationwide using the mail, or interstate shipment by any express company or common carrier, to send or receive any drug that is ‘designed, adapted, or intended for producing abortion.’”

The 1930 court ruling that lawmakers and judges had, for over 90 years, believed only applied the Comstock Act to items that were illegal (like child porn), Senator Hide-Smith wrote:

“[D]oes not protect CVS or any other individual or entity from being prosecuted within the five-year statute of limitations for the illegal mailing or interstate shipment of abortion drugs … even for conduct that occurs today.”

Keep in mind, under the plain language of the Comstock Act this could also apply to birth control pills, IUDs, and other things used to prevent pregnancy. And, of course, pornography and “masturbation devices” like vibrators.

The lawyer for Republicans defending Kacsmaryk’s ruling, Erin Hawley, went so far as to assert before the Fifth Circuit Court of Appeals that even physicians and pharmacies shouldn’t be able to receive Mifepristone or other drugs that could produce an abortion via the mail, FedEx, or UPS:

“What the Comstock law says is that it is improper to mail things that induce or cause abortions, which is precisely the action the FDA took in 2021 when it permitted the mailing of abortion drugs.”

If Hawley’s interpretation is enforced by Todd Blanche once he’s securely settled into his office with a vote by Republicans in the Senate, all abortions in the United States could be ended when drugs and suction and surgical devices designed specifically for the procedure can no longer be shipped to hospitals, clinics, or physicians’ offices.

This is no idle threat.

As Washington Post reporter Dan Diamond wrote for his Substack newsletter, anti-abortion activist Mark Lee Dickson, who’s helped several cities around the country put into law local versions of the Comstock Act, told him:

“If a future president were to enforce these federal statutes, then they could shut down every abortion facility in America.”

This is the specific goal of these mostly “Christian” religious fanatics: to completely outlaw all abortion and radically restrict access to birth control. And having Blanche start enforcing the law that’s already on the books, provoking a battle heading for the Supreme Court, is all it would take.

Such a case would, based on Blanche’s sworn testimony to the Senate, have Republicans, Clarence Thomas, and Sam Alito gleefully rubbing their hands in anticipation.

So, if you’re concerned about the future of abortion rights in America, it might be a good time to call your Senators — particularly if either is a Republican — and let them know your thoughts on Blanche’s nomination that’ll probably get a vote in the next two days.

Louise’s Daily Song: “Cold Dead Hand”

Comments on Tuesday’s Daily Take:

It’s Worse Than You Think for the Middle Class

The middle-class criteria are an important measure of where we are as a country. But I would like to hear more talk about the shameful poverty and homelessness that is all around us and taken for granted.
~ Robert B. Elliott

Thank you for the explanation as it is hard to find solid stats on the internet to use for talking points regarding the middle class. Some resources on the internet talk about the percentage of people that say that they feel that they are middle class. A lot of us assume that we must be, but we sure don’t feel like we are. People that have led a “comfortable” life just don’t seem to get it.
~ Bret

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