By Sarah Stewart Taylor
Wednesday, January 31, 2001
On the eve of John Ashcroft's expected confirmation by the Senate, some reproductive rights activists worry about the possibility that the implacable anti-abortion lawmaker would enforce an obscure law banning abortion references on the Internet.
WASHINGTON (WOMENSENEWS)--The Comstock Act, once thought to be consigned to history books, may be coming back to life.
Far from being a quaint relic of Victorian mores, a modified version of the Comstock Act is buried within the Telecommunications Act of 1996. It makes sending information about abortion over the Internet punishable by up to five years in prison for the first offense and fines of up to $250,000.
The original 1873 anti-obscenity law was used to prosecute family planning pioneers Margaret and William Sanger in 1914 and 1915 for printing information about contraception.
And some reproductive rights activists are concerned that if abortion foe John Ashcroft is confirmed as attorney general, he might enforce this little noticed section of the law.
"That provision remains and technically could be revived at any moment," says Simon Heller, an attorney at the Center for Reproductive Law and Policy in New York who filed a suit challenging the law in 1996. A judge dismissed the lawsuit when former attorney general Janet Reno agreed not to enforce the law.
Heller said that the pro-choice community hasn't been overly concerned about the Bush administration bringing back the Comstock provision because it's widely considered unconstitutional. However, he noted that President George W. Bush recently signed an executive order that barred U.S. aid to international family planning organizations that provide information about abortions and lobby their governments on abortion issues.
Heller added that Bush is willing to suppress information about abortion internationally, "it wouldn't be too far out of the realm of possibility" for the administration to try to stifle speech about abortion in the United States, Heller said.
In a formal statement opposing the Ashcroft nomination, the Center for Reproductive Law and Policy raised the possibility that the nation's highest law enforcement officer could try to enforce the law.
Ashcroft told the confirmation hearings that despite his personal convictions and past anti-abortion actions, he recognized that abortion was legal and he would not try to overturn or undermine Roe v. Wade, the Supreme Court ruling that declared abortions legal.
Other reproductive rights advocates say the law is so unconstitutional that they can't imagine a realistic scenario under which it would be enforced.
"There are a lot more things to be concerned about with Ashcroft than this," said Larry Frankel of the American Civil Liberties Union in Philadelphia, which filed a successful lawsuit in 1996 against the "obscenity" provisions of the Telecommunications Act.
Roger Evans, director of litigation for Planned Parenthood Federation of America, said, "There is very little doubt that the provision was unconstitutional."
Republican members of the Senate Judiciary Committee were not immediately available for comment Tuesday because of the impending confirmation vote. The full Senate is expected to vote tomorrow, Thursday.
A spokesperson for Sen. Orrin Hatch of Utah said that he wasn't aware of the Comstock provision and referred questions to a Judiciary committee aide who didn't return telephone messages.
Heller, attorney with the Center for Reproductive Law and Policy, said that the worst case scenario is that Ashcroft is confirmed as attorney general and immediately moves to reinvigorate the new version of the Comstock era law.
Individuals and organizations that have posted information about abortion on the Internet could be prosecuted before reproductive rights and civil liberties lawyers had time to seek injunctions. But Heller said he was not aware of any anti-choice groups that have been calling for enforcement of the law, unlike the so-called global gag rule.
Evans, from Planned Parenthood, said that if a future attorney general were to decide to enforce the provision, he would first have to give ample advance public notice of his intent to enforce the law, in which case lawsuits would be revived.
"Despite his record and reputation, I consider it highly unlikely that he (Ashcroft) will try to enforce this provision."
The 1873 Comstock Act was named for Anthony Comstock, the secretary of the New York-based Committee for the Suppression of Vice. It prevented Americans from sending pornography, as well as information about birth control and abortion, through the U.S. mail.
The law has remained on the books through the years, although Congress deleted the references to birth control and abortion in 1971. Five years ago, however, Henry Hyde, Congress's abortion foe and chief Clinton prosecutor from Illinois, inserted the Comstock Law into the Telecommunications Act of 1996 and revised it to criminalize the receiving or spreading of information about abortion on the Internet.
When the Telecommunications Act was passed in 1996, President Bill Clinton assured women's rights advocates that the law would never be enforced by his Justice Department. Some legal experts said that the law was unconstitutional and would never be enforced, even under a different administration. But others warned that a future president and attorney general who opposed abortion rights could try to prosecute organizations such as Planned Parenthood under the provision.
The Center for Reproductive Law and Policy filed a suit regarding the abortion provision on behalf of a group of pro-choice organizations. The suit was dismissed when then-attorney general Janet Reno filed a stipulation that she would not enforce it. Heller said that he was satisfied with the outcome at the time. The ACLU's successful suit dealt with other unconstitutional aspects of the law.
For many reproductive rights and family planning advocates, the new Comstock Act is a demonstration of how far anti-abortion forces are willing to go. It is also a reminder of a time when U.S. law prevented citizens from disseminating even the most basic information about reproductive health and birth control. Margaret and William Sanger were both charged under the act, Margaret Sanger was arraigned on eight counts in 1914 for publishing articles about contraception. Her husband was convicted of violating the Comstock Act for selling a pamphlet on birth control.
Sarah Stewart Taylor is a free-lance writer based in Washington, D.C.