In 2023, a federal judge in Oklahoma, Matthew Kacsmaryk, justified his decision to outlaw the practice of mailing mifepristone, a common abortion medication, by citing the Comstock Act. Since the early twentieth century, court cases had slowly chipped away at Comstock’s rigid definition of “obscenity,” and Congress repealed the law’s restrictions on contraception in 1971. Surely the controversial 1873 legislation was dead and gone.1
Yet the Comstock Act rose again. In 1996, U.S. Congresswoman Pat Schroeder (D-CO) warned fellow members of the House of Representatives about the consequences of their failure to repeal the law in its entirety. At issue was the Communications Decency Act (CDA), the first congressional effort to keep sex-related content off the internet. The CDA criminalized “indecent” or “patently offensive” speech that a minor could access from an online computer. Republican congressman Henry Hyde had authored an additional provision within the CDA that explicitly revived those portions of the Comstock Act related to abortion. Schroeder said that the CDA resuscitated “Comstockery” by “making it a crime to use the internet to provide or receive information which directly or indirectly tells where, how, of whom, or by what means an abortion may be obtained.” At stake, Schroeder emphasized, were both reproductive choice and free speech.2
Kiyoshi Kuromiya understood this idea intimately when he challenged government restrictions on what he could tell adolescents about sex and HIV/AIDS. Because the CDA made it a crime to use the internet to show minors any “patently offensive” material “as measured by contemporary community standards,” Kuromiya faced prosecution for including sexually explicit information about preventing the spread of HIV on the Critical Path website. Along with about forty other plaintiffs, he sued the federal government. “I don’t know what ‘indecent’ means,” he noted before a panel of three federal judges in Philadelphia, his wry self-composure mixed with an advocate’s intensity. “I don’t know what ‘patently offensive’ means in terms of providing life-saving information to people with AIDS, including teenagers.” Material that was legal to circulate in print would, under the CDA, be illegal to post on the internet.3
Initially, Schroeder’s concerns seemed overblown. Although the law passed, the ACLU won a preliminary injunction in federal district court, blocking enforcement of bans on “indecent” and “patently offensive” content on the internet. Kuromiya’s arguments had won the day. When the Justice Department pledged not to enforce the CDA’s abortion restrictions, rendering them moot, the judge allowed that portion of the CDA to stand. Two subsequent efforts to limit sexual content on the internet, the Child Pornography Prevention Act of 1996 and the 1998 Child Online Protection Act, were struck down in 2002 and 2009, respectively.4
But Schroeder was right: anti-abortion activists remembered those dormant clauses. Their moment arrived in June 2022 when the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade (1973), which had guaranteed a constitutional right to abortion. “Zombie” laws that were never stricken from state statutes, such as a total abortion ban passed in the 1840s in Wisconsin, lurched to life, enforceable once again in the absence of Roe’s constitutional protections. (A county circuit judge subsequently ruled in 2023 that the 173-year-old law did not prohibit consensual medical abortions, only the murder of fetuses, but abortion access in Wisconsin remains heavily restricted.) The Comstock Act, preserved and expanded under the CDA, joined the ranks of the legislative undead. In early 2023, state legislators in Texas and Iowa introduced bills that allowed private citizens to sue internet service providers “for distribution of abortion-inducing drugs,” those Comstockian relics of the CDA reanimated for the Dobbs era.5
As I write these concluding pages, several otherwise conservative states have approved ballot measures to protect abortion rights; elsewhere, abortion is illegal under virtually any circumstance. In addition to restrictions on GAC and drag shows at the state level, the Supreme Court in 303 Creative LLC (2023) ruled that it was not unconstitutional for a business owner to refuse to provide services to a gay person, in a decision that prioritized commerce as “freedom of speech,” protected by the First Amendment, over claims of sex-based discrimination.6
Today’s fights over sex and sexuality play out in a world far different from the one Comstock inhabited. In the 2020s, attempts at sexual censorship must contend with movements grounded in a sense of sexuality’s essential importance to a person’s self-conception, diverse and well-established support for women’s and LGBTQ+ rights, and a popular appreciation that sexual pleasure and bodily autonomy are rights widely shared. Comstock’s ghost may haunt our halls of government, but it has never faced as much organized opposition.