February 21, 2024

One of the Christian right’s allies in Congress, the Illinois Republican Representative Henry Hyde, who is perhaps best known for his 1978 hyde-amendment-30-years-of-violating-womens-rights/”>amendment barring the use of federal funds for abortion, would also put his mark on the CDA. The provision Hyde inserted would effectively criminalize abortion-related speech online. This “noxious abortion portion” of the CDA, Michigan Democrat Representative John Conyers said during debate, was introduced without notice and late in the process. At the same time, Hyde claimed that “nothing” in his late addition to the bill should be “interpreted to inhibit free speech” about abortion. Immediately, Hyde tried to downplay its potential ramifications, with aids pushing the idea that it didn’t amount to much, while also dismissing its critics’ concerns as the hysterical product of women’s rights groups. Morality in Media’s general counsel, Paul McGeady, said that the Hyde provision “was added … without adequate counsel” but also claimed that it was “a dead issue,” given the Department of Justice policy of nonenforcement. Somehow, in the views of Hyde and his supporters, the provision was essential to include and also did nothing.

Reproductive rights advocates knew better. Hyde had used the CDA to update the Comstock Act of 1873, “An Act for the Suppression of Trade In, and Circulation of, Obscene Literature and Articles of Immoral Use,” named for the anti-feminist, anti-pornography and prostitution, and Anti-abortion and contraception crusader Anthony Comstock. It
outlawed the sale and distribution of “obscene, lewd, lascivious, or filthy” materials, including “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use,” along with any materials “giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made.” Hyde’s provision in the CDA added to the act’s original catalog of distribution methods, such as the postal mail, the words “interactive computer service.”

The Hyde/Comstock provision remains in the law despite two legal challenges. the first, Sanger v. Reno, was brought by reproductive rights groups—Sanger being a descendant of Planned Parenthood founder Margaret Sanger—who charged that the provision was a violation of their First Amendment rights. the second, ACLU v. Reno, challenged the CDA as a whole and sought a restraining order that would have blocked the act from going into effect. But with both then–Attorney General Reno and President Clinton on the record saying that no one would be prosecuted under the Hyde/Comstock provision, the district court judges in both cases ruled that since there was no imminent threat of enforcement, there was no basis to proceed with either challenge. As a result, even though the Department of Justice would not defend the provision and did not believe it was constitutional, it survived these challenges.

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