Even before Roe v. Wade was overturned, the pro-life movement had already set its sights on reopening mail-order abortion rules linked to the Comstock Act.
The current legal situation around these rules is somewhat neglected when it comes to enforcement. Congress never repealed them, and, in fact, further broadened the law in 1996 to encompass abortifacient substances transmitted over the Internet. However, the Roe decision led to these laws being largely ignored.
Critics of the law aimed to use the principle of non-enforcement, known as desuetude, to halt the revival of Comstock enforcement. Yet, this legal argument has largely been dismissed by American judges, which could endanger Congressional authority. Moreover, Roe’s reversal raises questions about enforcing the Comstock Act, nullifying arguments supporting the principle of desuetude.
Discussions surrounding law enforcement often revolve around the “legality” of abortion. A memorandum issued by the Department of Justice during the Biden administration clarified that the Comstock Act does not prevent the mailing or receipt of abortion drugs unless the sender knows the recipient intends to use them for illegal purposes.
This reasoning has flaws, primarily because the term “illegal” isn’t explicitly mentioned in the law. Even if legality is referred to in some context, online sellers of chemical abortion drugs cannot verify whether their products are being used lawfully. They don’t have any way to ensure the credibility of the patient information they receive, especially since a majority of women seeking such medications are under ten weeks pregnant. Unfortunately, many women continue to fall victim to instances of misuse of abortion pills, which certainly raises concerns about legality.
Additionally, enforcing the Comstock Act based on the language of “illegal” use would still prevent mailing abortion drugs to states with laws against trafficking such pills. States like Texas and Louisiana have abortion shield laws that may hold up against scrutiny, allowing them to prosecute out-of-state providers who mail these medications into their jurisdictions.
An individual in Texas, Jerry Rodriguez, is taking legal action against a California doctor who sent him abortion pills. He believes he has a legitimate case as he references the Comstock Act in his argument. While California has laws protecting abortion access, the federal Comstock Act could supersede state laws.
The Trump administration sees the enforcement of the Comstock Act as central to its legal strategy, amid what Rodriguez perceives as a drawn-out legal conflict.
Members of the administration have historically advocated for the reactivation of the Comstock Act to prevent the mailing of chemical abortion drugs. After the Justice Department’s opinion on the Act, then-Senator JD Vance (R-Ohio) drafted a letter, signed by 40 other senators, urging the DOJ to enforce the law more strictly.
Now serving as Vice President, Vance has the opportunity to champion enforcement without bias, aligning himself with those advocating for Comstock.
This responsibility must be upheld. Trump previously expressed views that de-emphasize federal involvement in this issue; however, a lack of enforcement undermines constitutional authority, suggesting that Congress’s powers are not being recognized. Simply refusing to enforce the law may indicate a federal bias toward drug distribution, regardless of Trump’s beliefs.
Enforcing the Comstock Act is not a political act; it supports the legal framework our nation is built upon. It aims to break the cycle of coercion and abuse against vulnerable women and acknowledge the losses experienced by fathers like Rodriguez.
Federal law enforcement shouldn’t be swayed by personal agendas from either party. The Trump administration has a responsibility to ensure that the Comstock Act is fully enforced.
