Sue Dorfman/ZUMA Press/Alamy Live News via AP
Rep. Kathy Manning (D-NC) and Sen. Ed Markey (D-MA) reintroduce the Right to Contraception Act, June 14, 2023, at the U.S. Capitol in Washington.
A century and a half ago, three men sponsored three laws concerning abortion and contraception that continue to have an alarmingly enduring power over women.
Judge William T. Howell’s “Howell Code,” adopted by the First Legislative Assembly of the Territory of Arizona in 1864, was revived in April 2024 by the current Arizona Supreme Court as enforceable to prohibit abortion.
Anthony Comstock was a special agent in the U.S. Postal Service and secretary of an organization called the New York Society for the Suppression of Vice. The federal statute known as the Comstock Act of 1873 is “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use,” whose current application would criminalize the mailing of “abortifacients.”
Phineas Taylor Barnum, the circus entrepreneur, served in the Connecticut state legislature that enacted the Barnum Act of 1879, stipulating fines and jail time for “any person who uses any drug, medicinal article or instrument for the purpose of preventing conception,” as well as that “any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”
Unlike the first two laws, which remain on the books, the Barnum Act was overturned in 1965 by the U.S. Supreme Court. In Griswold v. Connecticut, the defendants were Estelle Griswold, the executive director of New Haven’s Planned Parenthood, and Dr. C. Lee Buxton, Yale’s chief of ob/gyn and the clinic’s medical director. They had provoked their own arrests in 1961, in deliberate violation of the Barnum Act.
After their conviction was upheld by the Superior Court of Connecticut, they appealed to the U.S. Supreme Court. The justices voted 7-2 to overturn the state law against contraception that had been in place for 86 years. Dr. Buxton was profiled in the extensive New York Times coverage of the case under the headline “Gentle Crusader.” As he told the Times, the ruling meant that “all doctors in Connecticut may now prescribe child spacing techniques to married women when it is medically indicated.”
I was seated with the defendants in that fabled chamber because I was Dr. Buxton’s future daughter-in-law, his son’s then-unmarried girlfriend who enjoyed the right to legal and easy access to contraception in my own home state of New York. Photographs of the courtroom are prohibited, but its mahogany bench and golden marble columns and red velvet draperies create a lasting impression. In that muted space, I was admonished by a guard for writing in my journal. While I didn’t know what to listen for during those two days of oral arguments in late March of 1965, I have a vivid memory of the distinctively raspy voice of Justice William O. Douglas, who then wrote the majority opinion that was delivered in June.
Douglas, for the first time, held that the Constitution provided what amounted to a constitutional right to privacy. “The First Amendment,” Douglas wrote, “has a penumbra where privacy is protected from governmental intrusion.” The notion of a right to privacy had first been proposed by the young Louis Brandeis in a famous 1890 law review article, long before Brandeis was appointed to the Supreme Court, but had never found its way into a formal ruling until Griswold.
BY 1965, THE GRISWOLD RULING may have seemed to be merely a legalization of what had become conventional medical practice, but in the context of today’s assault against the similarly “settled law” of Roe v. Wade, there is an urgent lesson. The Barnum Act of 1879, the Comstock Act of 1873, and Arizona’s 1864 Code of Law were all written, by men, long before women could vote.
The purpose of the “Acts, Resolutions and Memorials Adopted by the First Legislative Assembly of the Territory of Arizona” in 1864 is characterized by the historian Heather Cox Richardson as a criminal code aimed mainly at policing male misbehavior. As she writes in her Substack, Letters From an American, “The laws for Arizona Territory, chaotic and still at war in 1864, appear to reflect the need to rein in a lawless population of men.”
So it is in the context of punishing those Civil War–era men who secretly administer poison to kill someone that, as the Code states, a jail term of two to five years then becomes the sentence for using “poison or instruments” with the intent “to procure the miscarriage of any woman then being with child.”
The Barnum Act of 1879, the Comstock Act of 1873, and Arizona’s 1864 Code of Law were all written, by men, long before women could vote.
Whether this provision of that 1864 Code of Law for the Territory of Arizona is enforceable in the state of Arizona in 2024 will be decided by a ballot question this November. But as Richardson points out, that same 1864 Code stipulates that “[n]o black or mulatto, or Indian, Mongolian, or Asiatic, shall be permitted to [testify in court] against any white person.” And that “all marriages between a white person and a [Black person], shall … be absolutely void.” And what about the Code’s definition of the age of consent for sexual intercourse to be, as she writes, “just ten years old (even if a younger child had ‘consented’).” Will the Arizona court also uphold those provisions?
Nine years after the Arizona territorial Code of Law was written, the U.S. Congress passed in 1873 the federal statute called the Comstock Act. But in March of this year, the U.S. Supreme Court heard arguments concerning the enforceability of its provisions, specifically regarding the mailing of the prescription drug mifepristone.
Sen. JD Vance sent a letter to Attorney General Merrick Garland in January of last year. On behalf of 40 of his fellow Republican lawmakers, he wrote, “We demand that you act swiftly and in accordance with the law, shut down all mail-order abortion operations.” According to The Washington Post, those Republicans also urged the Justice Department “to potentially prosecute physicians, pharmacists and others ‘who break the Federal mail-order abortion laws,’” meaning the Comstock Act. Although former President Trump told Time magazine in April of this year that he would have a statement on Comstock in “two weeks,” he has yet to publicly take a position. But Sen. Tina Smith (D-MN) is now leading an effort in Congress to repeal the Comstock Act, stating, “The threat that a future Trump-Vance administration will misuse Comstock to ban abortion nationwide is now a five-alarm fire.”
THE WOMEN’S RIGHTS ACTIVIST MARGARET SANGER challenged the Comstock law in 1914 and was indicted for “depositing non-mailable matter for mailing and delivery,” namely The Woman Rebel, her newsletter providing information about birth control, and her pamphlet called Family Limitation, considered to be the first modern marriage manual. Anthony Comstock himself labeled this material “obscene, lewd, lascivious, filthy, indecent and disgusting” and equated it with erotic postcards.
Sanger’s mother gave birth to 11 children and had seven miscarriages, and after her death at age 50, Sanger sought training as an obstetrical nurse. She then opened the first U.S. birth control clinic, for which she was jailed in 1916. In 1921, she founded the American Birth Control League, the precursor to the Planned Parenthood Federation, but it wasn’t until 1960 that she saw her long-term goal realized with the FDA’s approval of Enovid, the first oral contraceptive. In the year before her own death at age 86, she also saw the use of contraceptives become a constitutional right with the Griswold v. Connecticut ruling to overturn the Barnum Act.
Before P.T. Barnum became a Connecticut state legislator, his invention of the American circus began in 1835 with his $1,000 purchase of an enslaved woman named Joice Heth. She soon earned him $1,500 a week in circus sideshows with Barnum promoting her as the 161-year-old former nurse of George Washington, a grotesque deception personifying the degrading cruelty of the freak show displays of Barnum’s “Greatest Show on Earth.”
In stark contrast to the circus culture of P.T. Barnum, the Big Apple Circus opened in 1977 in the then open land of Battery Park in downtown Manhattan. It was a notable advance over Barnum’s circus for its elimination of the freak show, and for its more humane treatment of the animals. The Big Apple Circus was entirely original for its dedicated goal of community outreach, which has taken the form of the “Clown Care” doctors who perform in children’s hospitals—225,000 visits a year—to entertain while demystifying illness and allowing children to cope with their fear.
And since the invention in 1984 of Cirque du Soleil—the circus created in Montreal and experienced by more than 350 million people around the world—there can be no nostalgia for America’s original circus. With the notable total absence of performing animals, the Cirque brings the circus into consonance with today’s values. Its fabulous spectacles strive for and achieve the “willing suspension of disbelief” that defines theater. And magic.
Just as our concept of the circus has changed to meet the times and express the values to which the common culture adheres, a similar evolution occurs within the law. And yet, as we saw in Connecticut, as we are seeing in Arizona, and as we could see nationally if Comstock is reactivated as a means of preventing abortion medication (and perhaps even contraceptive devices) from being accessed by mail, an outmoded law can still be implemented, no matter how inconsonant it is with the will of the majority of America’s citizens.
As if we were still living in the mid-1800s when men codified their absolute power over women and minorities, we are now, again, at the mercy of those who seek to define contemporary life by the archaic rules whose very language requires translation. Now, however, the most obvious counterweight is also the most effective. Today’s women and people of color can vote.
So let us now be instructed and inspired by a parallel series of events. In 1866, two years after Arizona’s original Code of Law, Susan B. Anthony and Elizabeth Cady Stanton founded the American Equal Rights Association and campaigned for suffrage regardless of gender or race.
Two years later, the first edition of The Revolution appeared, the periodical they published under the banner “Men, their rights and nothing more; Women, their rights and nothing less.” In 1872, one year before Comstock, Anthony was arrested for illegally voting for Ulysses S. Grant for president. In 1878, one year before Barnum, a Woman Suffrage Amendment was first proposed in the U.S. Congress, with language identical to the 19th Amendment that was finally adopted in 1920.
Just as the American circus evolved from P.T. Barnum’s cruel version of entertainment to an alternate, humane vision, we know that when the people vote, a power beyond power is generated. The chorus proclaiming “We’re Not Going Back” is another way to say democracy.
