Abortion politics in 2024, the 1872 election, and the first woman presidential candidate
Yes, they are all connected
Victoria Woodhull, the presidency, and free love
Do you know the name of the first woman to run for president of the United States? Don’t feel bad if her name doesn’t immediately spring to mind, as Victoria Woodhull isn’t exactly a household name.
But, as we’ll see, Woodhull was not only the first female presidential candidate (a full 48 years before the 19th Amendment even gave women the right to vote), but her candidacy was instrumental in triggering a moral crusade and Congressional legislation that reverberates even today in the charged debate over abortion rights in the United States.
Woodhull may not be as famous today as some of her contemporaries, such as Susan B. Anthony, but she was also part of the 19th century women’s suffrage movement and was a trailblazer in other ways. When she made history with her 1872 presidential run as the nominee of the Equal Rights Party, she was a 34-year-old activist, the country’s first female stockbroker, and a newspaper publisher.
She was also well known in her time for supporting free love, or the right of individuals to love whomever they wished without interference from the government. She drew packed houses for lectures on this topic and described her beliefs this way in an 1871 speech at Steinway Hall in New York.
To love is a right higher than Constitutions or laws … Yes, I am a Free Lover. I have an inalienable, constitutional and natural right to love whom I may, to love as long or as short a period as I can; to change that love every day if I please, and with that right neither you nor any law you can frame have any right to interfere.
Woodhull’s beliefs can be seen today as a basis for everything from the LGBTQ community to polyamory, but in her own time she was particularly concerned about the ability of women to extricate themselves from loveless or abusive marriages.
And while she didn’t specifically promote non-monogamous relationships, she did rail at the hypocrisy of a society that accepted extramarital affairs by men but condemned women for the same desires. It was this stance that ultimately got her in a bit of trouble during the 1872 campaign.
The Equal Rights Party in 1872
The Equal Rights Party that nominated Woodhull (on the theory that although women couldn’t vote, there was nothing in the Constitution that said they couldn’t run for office) was made up of an array of activists who were trying to transform the American political system, including women’s suffragists, veterans of the abolitionist battles, labor reformers, and more.
The party platform was ahead of its time in calling not only for women’s voting rights, but also for racial equality, a graduated tax system, civil service reform, and the formation of a congress of nations to settle international differences.
This desire to shake up politics also led the party to nominate Frederick Douglass, the African American author and abolitionist leader, for vice president. Douglass, however, was not a party member and supported the incumbent president, Ulysses S. Grant, so he never formally accepted the nomination. Still, it’s extraordinary that any political party during this era even imagined a presidential ticket led by a woman and an African American.
In the end, the presidential race was primarily fought between the Republican Grant and the Democratic nominee Horace Greeley, editor of the New York Tribune. Grant defeated Greeley 56–44% in the popular vote and easily won re-election. The Equal Rights Party and Woodhull, not surprisingly, had no real impact on the outcome.
Woodhull spends Election Day in prison
In fact, America’s first female presidential candidate actually spent Election Day in a prison cell. This was because she had dared to publish an article about adulterous affairs committed by the preacher Henry Ward Beecher. Woodhull published the story not to condemn Beecher but rather to criticize him for hypocrisy for using his pulpit to criticize the concept of free love even as he was engaged in an affair with a married woman.
After the article was published, Woodhull was arrested for sending supposedly obscene publications through the mail. She spent several weeks in jail awaiting trial, but was later acquitted.
Today, however, Woodhull’s arrest and her trial are still consequential in ways that go beyond her actual campaign. That’s because Woodhull’s criminal charges from the 1870s are, in a roundabout way, linked to the abortion politics of the 2020s.
The Comstock Act in the 1870s
You see, Woodhull was arrested by federal marshals on the recommendation of Anthony Comstock, an anti-vice crusader in New York. At the time, the Post Office Act restricted the sending of obscene materials through the mail and Comstock deemed Woodhull’s articles to be obscene. He was angered by Woodhull’s later acquittal when the court ruled the law didn’t apply to newspapers.
In the aftermath, Comstock headed to Washington, D.C. with a collection of pornography, obscene literature, sex toys, and contraceptive devices that he’d collected during his moral crusades, and in 1873 he convinced Congress to pass a stricter version of the Post Office Act, which became known as the Comstock Act.
In addition to banning obscene materials, the Comstock Act outlawed the mailing of anything that could be used as a contraceptive or for an abortion. For the next few decades, the legislation resulted in the banning of books and artwork and in thousands of arrests, including of Margaret Sanger, the founder of what became Planned Parenthood, for her role in promoting birth control.
As society changed during the 20th century, however, the law went dormant. It was especially seen as a relic after the Supreme Court ruled in the 1965 Griswold case for a constitutional right to contraception, and after the 1973 Roe v. Wade decision establishing the legal right to abortion.
The Comstock Act and abortion rights today
But then in 2022 the Supreme Court overturned Roe v. Wade, and suddenly the Comstock Act (which had never been officially repealed) came roaring back to life.
Today, anti-abortion activists are trying to ban the mailing of pills, specifically mifepristone, that can be used for abortions. They cite the Comstock Act as a legal basis for their challenges.
Although some observers have suggested the Act should be considered unconstitutional based on a contemporary understanding of the Constitution, Texas District Court Judge Matthew Kacsmaryk, a Donald Trump appointee, instead ruled in 2023 that the Comstock Act “plainly forecloses mail order abortion.” The Fifth Circuit Court of Appeals agreed and decided it is indeed illegal to deliver the drug through the mail, while a judge in Washington state went in the other direction and directed that the pills continue to be made available.
The case is now before the Supreme Court, with a ruling expected by early summer. After oral arguments in March, most observers suggested the Court was unlikely to ban mifepristone. However, the case seems to hinge mostly on whether the plaintiffs had legal standing to bring the lawsuit, so the question of the Comstock Act may well remain unsettled. And at least two conservative justices did appear to take seriously the Comstock Act and the possibility that it could be used to ban the mailing of drugs or devices used in abortions.
Beyond this, numerous conservative and anti-abortion activists have already made preparations for a second Trump term and have laid out scenarios under which a de facto abortion ban could be achieved solely through executive action, without the need for Congressional approval.
The Comstock Act plays a key role in these plans, as a simple decision to enforce the Act could lead to a near ban on abortion nationwide by prohibiting any drug or any instrument used by a doctor for an abortion from being sent through the mail. It’s been reported that Trump allies are in fact hoping to direct the Justice Department to do exactly that: enforce stricter enforcement of the Comstock Act as a way to restrict abortion, even in states where abortion is legal.
It's a high stakes case, one that could expose more rifts and ignite more political conflict in the national battle over abortion rights. And the roots of the legal fight wind all the way back to the 1872 election, the moral crusades of Anthony Comstock, and the presidential campaign of Victoria Woodhull.
This essay was written for Substack, but parts of it were adapted from my book, Quest for the Presidency: The Storied and Surprising History of Presidential Campaigns in America (Lincoln, Nebraska: Potomac Books/University of Nebraska Press, 2022).
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(Photo credits all via Wikimedia Commons: Top photo of Victoria Woodhull, second portrait of Woodhull, and photo of Anthony Comstock.)