Tennessee Republicans turn to mail regulation to restrict abortion

The Tennessee law specifies that a physician cannot perform or attempt to perform an abortion by any means, including by prescribing pills for a medication abortion, without being in the physical presence of the pregnant patient. Although the Food and Drug Administration recently approved mailing the pills, the Tennessee law also prohibits anyone, including a manufacturer or physician, from distributing “an abortion-inducing drug via courier, delivery, or mail service.” Violation is a felony offense, punishable by up to 20 years in prison and a fine up to $50,000. Tennessee is not alone.

So far, 19 states have placed restrictions on these pills, which account for about 39 percent of abortions in the United States. They are considered a safe way to make abortion available in states where the surgical procedure is already difficult to obtain and likely to be outlawed if Roe is overturned. Arizona, Arkansas and Texas also ban mailing the pills. Other states ban telehealth or require ultrasounds, waiting periods and counseling before obtaining an abortion.

This is not the first time U.S. mail has been used to obtain materials necessary for reproductive autonomy — or the first time doing so has been outlawed. In 1873, Congress passed the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, dubbed the Comstock Act. It banned mailing “indecent” materials, including information about contraception and abortion, as well as devices used for those purposes.

Then, the mail was many people’s main conduit for information they could not obtain easily, much like the Internet today. The Comstock Act restricted conversations about reproductive autonomy, resulting in the arrests and convictions of physicians who violated the law — not unlike what laws in Tennessee and elsewhere threaten.

The law’s namesake, Anthony Comstock (1844-1915), was a Union Army veteran who founded the New York Society for the Suppression of Vice (NYSSV). A crusader against anything he considered “immoral,” he campaigned not only against birth control and abortion, but against female independence itself. He took on Woodhull & Claflin’s Weekly, a feminist newspaper published by Victoria Woodhull, who ran for president in 1872, and her sister, Tennessee Claflin, because it promoted woman’s suffrage and “free love” — a term for sex outside of marriage. Designated a special agent for the U.S. Post Office Department, Comstock personally arrested Ezra Heywood, who argued in 1878 in a pamphlet called “Cupid’s Yokes” that women should be able to control their own bodies. He also arrested a man who was convicted of obtaining a copy of “Cupid’s Yokes” through the mail.

“Comstockery” was ridiculed. In 1878, 50,000 people signed a petition to have the law overturned, arguing that it was used to “destroy the liberty of conscience in matters of religion, against the freedom of the press and to the great hurt of the learned professions.” Congress, however, refused. A House committee emphasized that the postal system had not been established to mail obscene materials.

In addition to the federal act, 24 states passed copycat laws. Comstock’s home state, Connecticut, banned contraceptives altogether.

That did not, of course, stop women from seeking birth control and abortions, nor did it stop sources who would supply information and material underground, whether safe or not. Euphemisms and innuendo were used to circumvent the laws. For example, herbal concoctions used to induce abortions were dubbed “female regulators.” Notably, in 1907, NYSSV reported finding ads in New York papers for “pills that could be used for criminal purposes” — that is, abortion. Hidden in small red boxes within larger boxes, the pills were “broadcast over the country to tempt young girls and women from paths of virtue, and as a menace to motherhood.”

Yet it was impossible for Comstock to monitor every piece of mail, and women’s need for birth control and abortions persisted. Distributors also became better at conveying information in coded ways to evade mail censors.

About 20 years ago, I discovered a brochure for something called “Colagyn” stuck in a box of old Christmas cards that had been in my grandmother’s attic for decades. The brochure was from the 1930s, when, due to the economic downturn of the Great Depression, women’s desire to control reproduction was especially acute. The brochure’s cover featured an elegant woman above the words, “A Safe Application of a Proven Idea in Feminine Hygiene.” In covert language, the inside pages suggested what was not obvious at first glance — both a rationale and a means for women to assert control over their own fertility.

One story was about “Jimmy,” a little boy whom “nobody wanted but he was born anyway.” His mother already had six children and his father had no job. Already overwhelmed with “Jimmys,” the state didn’t want him. Sadly, Jimmy soon died, apparently of starvation. “Some very good people said it was God’s will that Jimmy be born. Surely God would not be so cruel to poor little Jimmy.”

Next, “The Parable of the Flower” talked about gardening. “When we decide to plant a flower in our yard, we would not think of taking the seed out in the winter and planting it in a heavy snow. We would wait for spring and sunshine. … If we are so careful in the planning of our flowers, should we not be even more careful when we plan the coming of our children?”

Nicholas Culpeper, a 17th-century apothecary, is quoted. “Sweet basil ‘helps the deficiency of Venus in one hand so it spoils all her actions in another … I dare write no more.’” So is Plato: “If too many children are born, there are measures to prevent propagation.”

Words like “contraception” and “abortion” are never mentioned, making the brochure safe to mail. Instead, it purportedly sold a product designed to provide “safe marriage hygiene” — Depression-era code for women taking control of their bodies. The product, Colagyn, is called “truly the answer to woman’s prayer, ‘Please teach me to care for myself so that I may bring my babies into the world after I have had time to prepare for them, and make that care safe and harmless, so that I may always be healthy and happy.’” The product offered “absolute cleanliness and protection” against “all forms of germ life,” ambiguous language that might have referred to sperm or a fetus. Its active ingredient was a fungicide now considered dangerous. At a time when abortion was not only secretive and shameful, but the cause of nearly one-fifth of maternal deaths each year, promises of “cleanliness and protection” would have been very reassuring to women.

Coded language continued to play a role in women’s reproductive autonomy long after Comstock’s era and the Depression, notably with the “Jane Collective” of the 1960s. Formally called the Abortion Counseling Service of Women’s Liberation, the “Janes” were feminists who helped women find safe abortions. The name came from signs the women would post: “Pregnant? Don’t want to be? Call Jane,” and a phone number. It was an updated version of euphemisms used a generation or so earlier, although the laywomen in Jane actually performed abortions, typically using a surgical technique they learned from sympathetic physicians.

The Comstock Act has never been repealed, though a 1936 decision, United States v. One Package, made mailing contraceptive information legal. The Connecticut law was finally overturned in 1965, when the Supreme Court ruled in Griswold v. Connecticut that the 1879 law violated the right to privacy — the foundation of Roe v. Wade.

If abortion laws like the one in Tennessee are a harbinger of what is to come in even more states, this history suggests what also may be on the horizon in a post-Roe world, as women look for ways to take back control of their reproductive rights.