The Comstock Act of 1873 is a relic, the work of an anti-vice crusader, Anthony Comstock, who lobbied Congress to prohibit, among other things, the mailing of any “obscene, lewd, or lascivious” written material. The act, formally known as “An Act for the Suppression of Trade in, and Circulation of, obscene Literature and Articles of immoral Use,” also forbid the mailing of “any article or thing, designed or intended for the prevention of conception, or procuring of abortion.”
Over the decades, federal courts have narrowed the interpretation of this blunderbuss of a law, finding it ran into 1st Amendment issues. Congress removed the prohibition on contraception in 1971. And federal courts have agreed since the early 20th century that the law does not prohibit all mailing of items for an abortion, according to a December 2022 opinion from the Office of Legal Counsel for the U.S. Department of Justice.
Attempts to repeal the Comstock Act have been unsuccessful, but it is so antiquated that it’s considered a “zombie” law — one that lies mostly dormant on the books, rarely used.
But once the Supreme Court overturned Roe v. Wade and numerous states enacted severe abortion restrictions or near bans, abortion opponents rooted through the federal code to reanimate the Comstock Act, arguing that it prevents the mailing of medication abortion pills everywhere.
The most commonly used form of abortion is medication pills. They are relatively easy to get and the Food and Drug Administration has recently made them easier to get by allowing telehealth medical appointments for abortion and also allowing pharmacies to get certified to sell — and mail — abortion pills.
All this has made medication abortion a target for abortion opponents determined to wipe out an easily accessible form of abortion. They have sued the FDA in federal court, arguing that medication drugs have not been studied adequately and need to be taken off the market. (A ruling on that case could come any day.)
After Walgreens announced that it would get certified to sell abortion pills last month, 20 state attorneys general wrote the company warning them, among other things, that it was illegal to send out the abortion pills, mifepristone and misoprostol, in the mail.
But it’s not. So says the legal counsel for the Justice Department. In a December opinion responding to a request from the U.S. postmaster general, the counsel concluded that the law “does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”
The opinion makes it clear that both the courts and Congress interpret the law to refer to “unlawful” abortions — and that there’s no way that the Postal Service (or any other common carrier or express service which are also under this edict) could know why anyone is using the pills. Misoprostol in particular is used for a number of other medical reasons.
For example, the pills could be going to states (such as California) where abortion is protected and available through the first two trimesters of pregnancy. Or they could be going to a state where abortion is widely banned except when the health of the pregnant person is at risk, or in cases of rape or incest. Or they could be intended for other medical uses.
“Therefore, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully,” the Justice Department’s opinion says.
This legal advice probably won’t stop antiabortion state lawmakers from citing the Comstock Act to pass laws prohibiting the mailing of medication abortion into their states. (Missouri bans the mailing of abortion pills — but it’s already under a near total abortion ban that would supersede any ban on medication abortion mailing.)
Of course, the Biden administration wouldn’t enforce that law against the U.S. Postal Service. But what these state restrictions — and threats from state attorneys general — do is intimidate pharmaceutical companies into not selling abortion pills through mail-order and health care providers into not even trying to send out medication even though the federal government has said it is legal to do so.
Antiabortion lawmakers are not attempting to uphold the law. Instead, abortion opponents want to weaponize a 150-year-old law that shouldn’t even be on the books to further their goal of taking away a right to reproductive health care. No one should give in to their threats.
