By Chelsey Youman

After 22 years, Food and Drug Administration (“FDA”) approval of the abortion pill is finally being re-evaluated by U.S. courts. Under the current chemical abortion rules, abortion drugs are being mailed into and throughout the United States directly to pregnant women, even in states where abortion is illegal. Women are instructed to ingest the drugs at home and flush their babies down the toilet when they deliver, with little guidance on what to do if a complication arises. 

And this is happening even though transporting abortion drugs through the mail has been illegal for 150 years thanks to The Comstock Act.  

What is the Comstock Act, and why isn’t it being enforced? 

In February, 2023, twenty state attorneys general, led by Missouri Attorney General Andrew Bailey, penned a letter amidst concerns that retail pharmacies would soon begin dispensing abortion drugs. They explained that the 1873 Comstock Act clearly criminalizes the trafficking of abortion materials, including drugs, in the mail:  

First, many people are not aware that federal law expressly prohibits using the mail to send or receive any drug that will “be used or applied for producing abortion.” 18 U.S.C. § 1461. Although many people are unfamiliar with this statute because it has not been amended in a few decades, the text could not be clearer: “every article or thing designed, adapted, or intended for producing abortion … shall not be conveyed in the mails.” And anyone who “knowingly takes any such thing from the mails for the purpose of circulating” is guilty of a federal crime.  

Despite this very clear federal law, abortion vendors at home and abroad violate federal law by mailing abortion drugs and have for decades. Students for Life notes that groups like Planned Parenthood and Aid Access “violated the Comstock Act FOR YEARS, assuming Chemical Abortion Pills were shipped to vendors and not hand carried by horse and buggy.”  

And it’s not just pro-life advocates like us who are sounding alarm bells and saying, “Hey, it looks like the abortion industry is breaking federal law with the FDA’s blessing.” Attorneys, medical professionals, and judges see the same problem.   

In his district court ruling on the abortion drug related case Alliance For Hippocratic Medicine v. U.S. Food and Drug Administration this April, Judge Matthew Kacsmaryk accurately affirmed that one reason the pro-life physician plaintiffs had standing to bring their case against the FDA because they were “within the zone of interests of the Comstock Act.” Current abortion rules are in conflict with federal law.   

The abortion industry and its political and media allies typically choose one of two ways to deal with the pesky reality of the Comstock Act. First, they incorrectly claim the law is too old and outdated to enforce. Second, they ignore the law and pretend it does not need to be enforced.  

The Comstock Act is an enforceable and active federal law that the abortion industry criminally violates daily. Moreover, abortion pill vendors will face criminal penalty for violating the Comstock Act when the federal government is inclined. The problem is, in this case, the current federal government prioritizes abortion over the rule of law.  

As the case Alliance For Hippocratic Medicine v. U.S. Food and Drug Administration moves through the U.S. court system and candidates gear up for the 2024 presidential election season, prepare to hear a lot more about the Comstock Act and how enforcing it is the greatest asset on the road to protecting every American child from the injustice of abortion.