The next battleground on abortion lies at the post office — over a 150-year-old anti-vice law that some legal experts say expressly bars the mailing of abortion pills.
Conservatives say the Comstock Act of 1873 invalidates the Biden administration’s plan to mail abortion pills to pregnant women anywhere in the U.S. Liberals say the law has not been used for decades and has always been broadly interpreted, and they reason that the law doesn’t forbid the mailing of the pills as long as the sender doesn’t intend for the drugs to be used illegally.
Either way, courts will be forced to address the Comstock Act, which is cited in two pending federal cases.
The law bars the use of the U.S. Postal Service for the transmission of obscene literature, contraceptives and abortion-inducing materials. The law is named after anti-vice activist Anthony Comstock, a U.S. postal inspector who sought to prevent the Postal Service from delivering any sex-related material.
A decision is expected soon in a case pending in the Northern District of Texas. The conservative legal nonprofit Alliance Defending Freedom filed a lawsuit last year on behalf of the Alliance for Hippocratic Medicine, which advocates that health care professionals adhere to the Hippocratic oath.
The lawsuit says the Food and Drug Administration “exceeded its regulatory authority to approve the drugs” and asks the court to strike down the FDA’s approval of the chemical abortion pill. The mifepristone pill was produced by a French manufacturer and was brought to the U.S. during the Clinton administration.
The plaintiffs say the pill can lead to severe complications for women when not used under physician oversight.
“This case is really about women’s health and safety and protecting women and girls from dangerous drugs. The FDA has a responsibility,” said Julie Marie Blake, senior counsel with Alliance Defending Freedom. “Put politics aside, follow the law and the science, and protect women and girls.”
The Texas case is pending before U.S. District Judge Matthew Kacsmaryk, a Trump appointee.
Although FDA authorization is the issue before the judge, the federal law 18 U.S.C. 1641, derived from the Comstock Act, is cited in the complaint.
Since its enactment during the Grant administration, the law has been mitigated by various rulings on commerce, obscenity and abortion — particularly the Supreme Court’s 1973 Roe v. Wade decision, which legalized the procedure nationwide. The high court repealed Roe last year and returned jurisdiction on abortion to the states in the case of Dobbs v. Jackson Women’s Health Organization.
The Comstock Act is also referenced in litigation pending in the Southern District of West Virginia. GenBioPro, an abortion pill manufacturer, filed a lawsuit against the state after it enacted a law banning anyone from performing an abortion who is not licensed to do so and prohibiting doctors from dispensing abortifacients through telemedicine.
West Virginia Attorney General Patrick Morrisey said in defense of the state that federal law prohibits the mailing of the drugs. He pointed to 18 U.S.C. 1641, the current rendition of the Comstock Act, and said GenBioPro would be violating federal law if it ships abortion pills to his state.
Sarah Parshall Perry, a senior legal fellow at the conservative Heritage Foundation, said the courts will have to address the reach of the Comstock Act. Judges haven’t done that in decades since Roe.
“States now have an interest in restricting abortifacients within their own boundaries,” she said. “It’s never been an issue up until this point.”
Lawyers in the Department of Justice argued before the Texas federal court that the pending case against the FDA is “unprecedented” and would upend the status quo of a drug that doctors have been prescribing for decades.
The Justice Department also said the federal law banning the mailing of abortion drugs doesn’t apply in the Texas case because the abortion drug was given federal approval more than two decades ago.
The department’s office of legal counsel issued an opinion in December saying federal law doesn’t prevent the mailing of chemical abortion pills. It reasons that the sender must know the recipient will use the drugs in an unlawful manner.
“There are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law,” the Justice Department opinion said.
The memorandum points to several cases in which judges have interpreted the statute broadly. In 1915, a court reversed the conviction of a doctor who sent detailed instructions to a woman about how she may procure an abortion, referenced as an “operation.”
Ms. Perry said those cases are no longer on point and that the Justice Department was “holding its opinion together by Scotch tape.”
“Their ultimate conclusion is that the sender would have to intend the receiver would have to use the abortion drugs illegally. That doesn’t pass the straight-face test,” she said.
Elliot Mincberg, counsel at the liberal legal nonprofit People for the American Way, said the abortion pill is the next target of pro-life activists. How the court rules on the FDA’s authorization and interpretation of federal law regarding the mailing of the pills will have a significant impact on women, he said.
“There are so many circumstances for which these pills can be used for not only abortion but related things so that it would be very difficult to prove the intent you would need to prove against the people sending these pills,” Mr. Mincberg said.
Retail pharmacies seeking FDA certification to mail the pills are feeling the heat. Walgreens and CVS received a letter from 20 Republican attorneys general warning of legal consequences, including violations of the Comstock Act. Walgreens said Thursday that it would not sell mifepristone in those states.
Mifepristone and misoprostol are the two drugs used in the dual-pill regimen approved by the FDA to end pregnancies up to 10 weeks of gestation. In January, the agency made permanent its pandemic-era rule allowing the pills to be dispensed via telehealth and delivered by mail.
The abortion pill has become the most popular method of pregnancy termination. In 2020, the pills were used in 54% of reported abortions, surpassing surgical procedures for the first time, according to the pro-choice Guttmacher Institute.
Congress amended 18 USC 1461 to exclude contraceptives, which were included in the law’s original language. The law was never amended to exclude abortion, Ms. Perry emphasized. She said lawmakers intended for the mailing of abortion drugs to be left unlawful.
“It just goes to the multitude of reasons why the FDA was turning a blind eye to what the law required,” she said.
• Valerie Richardson contributed to this report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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