Anti-Abortion Groups Defend Century-Old Mailing Law in Pill Case

The anti-abortion movement is rallying behind the argument that a more than 150-year-old law prohibits the mailing of abortion pills—a question before the Supreme Court that reproductive health lawyers say threatens to restrict abortion access nationwide.

Physicians represented by the Christian legal group Alliance Defending Freedom argue in their lawsuit against the Food and Drug Administration’s regulation of the abortion medication mifepristone that the agency’s 2021 decision allowing individuals to get it through the mail violates an 1873 law known as the Comstock Act. This law, which has largely gone unenforced for decades, in part prohibits the mailing of any “article or thing designed, adapted, or intended for producing abortion.”

Conservative legal organizations and Republicans in Congress have recently defended this interpretation of Comstock in a flood of amicus briefs filed with the Supreme Court ahead of oral arguments in the case on March 26.

The high court is reviewing a ruling from the US Court of Appeals for the Fifth Circuit finding FDA decisions on mifepristone starting in 2016, such as allowing prescriptions via non-physicians and telemedicine, were likely unlawful. The Biden administration and drugmaker Danco Laboratories, which makes mifepristone through the brand name Mifeprex, appealed that decision.

The Supreme Court has never weighed in on Comstock, which lower courts previously said doesn’t prohibit the distribution of medication or other items intended to be used for lawful purposes. But the ADF and anti-abortion groups are looking to get the high court’s backing on their interpretation of the law, as conservatives are also examining how the Department of Justice could enforce Comstock if Donald Trump regains the presidency in this fall’s election.

Reproductive health lawyers say Democrats in Congress should get ahead of this and work to repeal the law. If Comstock stays on the books, it could be used to not only restrict access to abortion medication, but also any other instrument or equipment used in abortion care.

Comstock is “the biggest threat to abortion right now nationwide,” said David S. Cohen, a professor at the Drexel University Thomas R. Kline School of Law.

Anti-abortion groups “are going to continue trying to push that interpretation until the law doesn’t exist,” Cohen said in an interview.

Comstock is ‘Active’

The anti-abortion groups looking to stop the mailing of abortion medication say a plain language reading of Comstock supports doing just that.

“There has never been an overt repudiation or repeal of the Comstock Act, so it is still very much active right now,” said Sarah Parshall Perry, a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

The 1800s law, named after the anti-vice activist and US postal inspector Anthony Comstock, aimed to bar the mailing of items used to facilitate an abortion, as well as contraception, pornography, and other materials deemed “obscene, lewd, or lascivious.” Several court decisions have limited the reach of the law when it comes to contraception, including rulings in 1918 and 1936 that allowed women to use birth control for therapeutic purposes and doctors to distribute contraceptives across state lines, respectively.

The Biden administration has argued Comstock should not be read as a blanket prohibition on the mailing of abortion medication. In a December 2022 memorandum opinion, the then-assistant attorney general for the DOJ’s Office of Legal Counsel, Christopher Henry Schroeder, wrote Comstock doesn’t ban the mailing of abortion pills when the sender “lacks the intent that the recipient of the drugs will use them unlawfully.”

Schroeder cited several opinions by US federal appeals courts that he said supported this interpretation, dating as far back as 1915 in Bours v. United States. In that case, the US Court of Appeals for the Seventh Circuit reversed the conviction of a doctor who sent a letter to a woman suggesting how she “might procure an ‘operation’ from him.”

The DOJ argued in a March 15 brief in the mifepristone case that the anti-abortion doctors challenging the FDA “misunderstand” Comstock, and that nothing in the Federal Food, Drug, and Cosmetic Act “requires FDA to incorporate requirements that other, unrelated laws may impose on a drug’s distribution or use.” The DOJ cited the FDA’s approvals of numerous oral contraceptives, despite contraception being a prohibited item under Comstock.

Danco argued in a March 14 brief in the case that legal precedent defends the DOJ’s interpretation of Comstock—a law Danco argued the “FDA is not charged with enforcing” and “that does not alter the governing standards for FDA’s decisions.”

But the ADF offered a different interpretation in its Feb. 22 brief to the Supreme Court, arguing the text of Comstock doesn’t suggest that the mailing of abortion medication only applies if it’s to be used for “unlawful abortions.”

The conservative American Center for Law and Justice, which recently secured a win representing the Colorado Republican Party in a case on whether Trump could be barred from the 2024 state ballot, wrote in a Feb. 26 amicus brief that the OLC opinion “fails to refute the plain text federal prohibition on mailing abortion drugs and devices.”

Enforcing the Law

The Fifth Circuit’s majority opinion on mifepristone didn’t weigh in on Comstock, so it’s unclear if the Supreme Court will get into the substance of this argument, legal analysts say. Regardless, reproductive health attorneys warn conservatives’ interest in the law means there could be attempts at enforcement under a Republican presidential administration.

“Their interpretation of this 1873 law is one that would effectively put a stop to abortion practice in the United States,” said Catherine Weiss, a partner at Lowenstein Sandler LLP and former ACLU Reproductive Freedom Project director.

Weiss said she’s “pretty confident that the Justice Department under a second term President Trump” would “be comfortable enforcing this against anyone in any state who mailed products that cause abortion across state lines.”

The Heritage Foundation’s Project 2025, which outlines policy priorities under a potential transition to a Republican presidency, includes in the health agenda a call for the FDA to “stop promoting or approving mail-order abortions in violation of long-standing federal laws that prohibit the mailing and interstate carriage of abortion drugs.”

This agenda was written by Trump’s former director of HHS’ Office for Civil Rights, Roger Severino, who argues “abortion pills pose the single greatest threat to unborn children in a post-Roe world.”

Trump is set to face off against President Joe Biden again this November, and Parshall Perry said “if the Department of Justice has the political will” they “certainly could use the Comstock Act to prevent shipment over the mail.”

Calls for Repeal

Reproductive health lawyers say the reinvigorated sentiment from Republicans and anti-abortion groups in favor of enforcing Comstock means Congress should be working diligently to repeal the law—a move that has so far not garnered much public interest from Democratic lawmakers.

“This needs to happen immediately, and I have been disappointed that there has not been any public action on this,” Cohen said.

At the same time, Republicans have cited Comstock in questioning the FDA’s decision making on mifepristone.

In an amicus brief filed with the Supreme Court on Feb. 29, Sens. Cindy Hyde-Smith (R-Miss.), Ted Cruz (R-Texas), and 143 other members of Congress noted previous efforts to remove or amend Comstock have failed, including legislation introduced in 1996 to repeal the law’s prohibition on abortion-related items.

“These provisions have been federal policy for more than a century” and “Congress has never removed the prohibition on mailing chemical abortion drugs,” the lawmakers wrote.

Since Comstock prohibits the mailing of “every article, instrument, substance, drug, medicine, or thing” used for “producing abortion,” Weiss said this could mean “anything designed or to be used to cause an abortion could not be sent by any carrier,” including equipment needed for surgical abortions.

“It’s an extreme argument, and it will have extreme consequences throughout the United States,” Weiss said.