A coalition of pro-life organizations has reached out to Attorney General Todd Blanche to enforce the 1873 Obscenity Act, which prohibits mailing abortion pills.
The Comstock Act is a federal statute that bans the mailing of “obscene material,” including items designed to cause an abortion. However, following the Supreme Court’s 2022 decision in the Dobbs case, the Biden Department of Justice issued guidelines stating that mailing certain abortion pills is permissible if the sender does not intend for them to be used unlawfully. This interpretation enables the continued distribution of abortion drugs into states with restrictions.
The Biden administration also eliminated the in-person dispensing requirements for mifepristone in 2021, making this change permanent in 2023. This move came after the Supreme Court overturned the precedent set by the 1973 Roe v. Wade decision. Now, abortion providers in states that support abortion rights can send pills into states with pro-life laws, aided by protective “shield laws” in those supportive states.
During a Senate Judiciary Committee meeting, Blanche mentioned he would assess the previous legal interpretation of the Comstock Act provided by the Justice Department.
A letter from Advancing American Freedom, co-signed by leaders from over 30 pro-life and conservative groups, commended Blanche’s commitment to re-evaluating the DOJ’s stance. The letter emphasized that proper interpretation of the law should reflect the text as written by Congress. The writers express hope that this review will start soon and are confident in their belief that the Comstock Act, according to the DOJ’s opinion, strays from Congress’s original intent.
The letter also stated that interpreting an act requires adhering to what Congress actually meant, starting with the ordinary meaning of its words. The authors argue that the language of the Comstock Act is clear in prohibiting the mailing of items intended for abortion, contrasting it with what they believe to be a misleading interpretation by the DOJ.
For medical abortions, mifepristone works by blocking progesterone, leading to the deterioration of the endometrial lining, which eventually causes the fetus to die. This is followed by another drug, misoprostol, which induces contractions and bleeding to expel the fetus.
According to the Guttmacher Institute, medication abortions made up about 63% of all abortions in the United States in 2023, an increase from previous years. This data doesn’t include pills sourced through underground networks, which are sending drugs to women in more restrictive states.
Pro-abortion groups predict that by 2025, there will be around 91,000 telemedicine abortions in states with restrictions, aided by laws protecting those providers.
In a legal case, Louisiana’s Rosalie Markesic alleges her boyfriend forced her to take abortion pills he ordered online, and she is suing the FDA regarding mail-order regulations. The Supreme Court has allowed these services to persist while lower court deliberations continue.
The FDA has remained somewhat passive about the ongoing dispute, opting to allow mail-order abortion programs to function while reviewing the safety of mifepristone, a decision that has drawn criticism from the pro-life sector. Pharmaceutical companies involved have also argued against restricting mail-order access, citing economic concerns.
Abortions rights groups state they will continue to send misoprostol, which can independently induce abortions, especially if the court outcomes turn against the FDA’s policies on mifepristone.
If the Justice Department interprets the Comstock Act to entirely ban mailing any abortion-related items, it would likely complicate matters for abortion organizations trying to comply with the law.
