To Form a More Perverted Union

They were aimed at protecting virtuous womanhood. And amidst massive demographic shifts brought about by millions of European immigrants, urbanization, industrialization, and the migration of white, English-speaking American natives from rural to urban areas—where they would be less supervised by families, churches, friends, etc.—there were all kinds of anxieties about peoples’ susceptibility to vice. And importantly, white middle- and upper-class women were having fewer and fewer children, and it was clear they were using contraceptive devices and obtaining abortions.

So when Congress passed the “Comstock Laws” in the 1870s, the law pulled literary materials that would induce lust and depravity into the same law that made it illegal to publish, distribute, sell, own, or tell someone how they could obtain abortifacients or contraceptive information. Birth control devices and abortion were made equivalents, and both illegal, alongside smutty postcards or literary tales. It’s a fascinating stew of anxieties, and women’s bodies and their reproductive choices are put at the center of those anxieties.

What parallels, or differences, do you see between the campaigns against abortion and birth control in the late 19th and early 20th centuries and present-day efforts?

One of the terms that was used regularly in the late 19th and early 20th centuries in anti-birth control discourse was “race suicide”—the idea that white women weren’t doing their duty to the nation and their families by not reproducing at the same rates as the poor Irish, Italian and Jewish immigrants pouring into the nation. The moral purity issues were also laden with race purity concerns, and women were expressly exhorted to not use contraceptives on racial and national grounds.

Our current era of restrictions on women’s reproductive rights is situated in a similar kind of stew about the declining power of white Americans—right-wing politicians and propagandists have been warning voters for decades about “hordes” of immigrants pouring over the borders, taking jobs, draining public resources, and changing the demographic makeup of the country. The fear of the diminished political, economic, and cultural presence of whiteness has also fueled a hyperbolic concern about educational materials that put the long history of American racial inequalities and brutalities at the center of our understanding of that history. Targeting and banning so-called Critical Race Theory from public schools coincides with another moment of sexual purity-driven efforts to keep books about queerness and young peoples’ sexuality out of classrooms and libraries as well. This corresponds with ongoing resistance to scientifically accurate sex education materials in the schools alongside the decades-long targeting of abortion.

One of the differences is that the campaigns against gay rights, same sex marriage, feminism, sex education, contraceptive availability, abortion, and now trans rights has been central to GOP culture wars politics for decades. The modern GOP has put these issues on the front burner as organizing and voter mobilization tools, litmus tests for candidates and judicial appointees, and as central to an endless campaign against liberalism, secular humanism, feminism, and the media’s “assault” on family values. It has been a hugely successful cluster of issues to organize around, to propound an argument of the family and family values being under assault, and so forth. 

The late 19th Century anti-obscenity laws and campaigns were not so political party focused, or used as part of partisan politics. They were widely agreed upon by clerics, churchmen and women, civic organizations, and judges, and they were seen as instruments for maintaining the moral order. The moral guardians of the era cut across party lines, religions, and regions.

Why was Ernst so successful in winning these cases? Are opponents of modern bans using similar arguments?

Ernst was effective because the laws were vague and overreaching, and because the laws and their enforcement asserted harm but couldn’t prove harm—especially in the private arenas of peoples’ bedrooms, bathrooms, and reading areas. In addition, he chose clients whose work was significant, defensible on the grounds of being worthy of public access and consideration, and because he could assert that work was far more valuable than it was harmful.

He was really successful at building cases by accumulating lots of expert opinion and testimony in the courts, and used doctors, public health officials, professors, writers, publishers and others as experts but also as publicity advocates. He built campaigns around his cases, and he got lots of respected people to weigh in against censorship on principle, and to speak at length about the value of these artifacts.

I think one of the differences in the current campaigns is that the battles are hyper local—a school board here, a library there, a legislative body here, another there—and they haven’t been fought in the courts yet. So the legal anti-censorship claims haven’t been tested. But I think more important, the “value” of books and ideas, about race violence and inequality as central to American history, or queer coming of age stories, or even an incredible work like Toni Morrison’s Beloved, have not been forcefully defended. The censors have claimed center stage. The anti-censorship forces have not taken it back like Ernst did, and remarkably, a work like Beloved could be vilified and smeared as “pornography” and harmful like it was in the last Virginia gubernatorial race, and yet, those claims weren’t summarily blasted by teachers, librarians, professors, and public-minded figures as being ridiculous. The value of ideas is not a given, and they must be battled over. Even a work like Beloved needs to be defended.