In the mail? Pro-life, pro-choice advocates turn attention to FDA’s abortion pill plan

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 cite the Comstock Act of 1873, saying it bans the Biden administration’s plan to mail abortion pills to pregnant women anywhere in the country. Liberals say the law has not been used for decades and has always been broadly interpreted, reasoning it doesn’t forbid the mailing of the pills so long as the sender doesn’t intend for the drugs to be used illegally.

Either way, the courts will be forced to address the Comstock Act, which is cited in two pending federal cases.

A decision is expected soon in a case pending in the Northern District of Texas, filed last year by the conservative legal nonprofit Alliance Defending Freedom on behalf of the Alliance for Hippocratic Medicine, which advocates that health care professionals adhere to the Hippocratic oath.

They argue that the Food and Drug Administration “exceeded its regulatory authority to approve the drugs” and ask the court to undo the FDA’s approval of the chemical abortion pill, composed of mifepristone, originally produced by a French manufacturer before being 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 against the administration.

The Comstock Act of 1873 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 delivery of any sex-related material by the postal service.

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, returning 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, has sued the state after it passed a law banning anyone from performing an abortion who is not licensed to do so, as well as dispensing abortifacients through telemedicine.

Patrick Morrisey, West Virginia’s attorney general, has pointed to 18 U.S.C. 1641, the current rendition of the Comstock Act, noting federal law bans the mailing of these drugs in his defense of the state. He says the company would be running afoul of the prohibition if it shipped its pills to his state.

Sarah Parshall Perry, a senior legal fellow at the conservative Heritage Foundation, said the courts are bound to have to address the reach of the Comstock Act, which judges haven’t done 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 to patients for decades.

The DOJ also claims that the federal law banning the mailing of abortion drugs isn’t applicable, since the abortion drug was given federal approval more than two decades ago.

In an opinion issued in December by the DOJ’s Office of Legal Counsel, the department found that the law doesn’t prevent the mailing of chemical abortion pills, reasoning 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 DOJ opinion read.

The memorandum also points to about half a dozen cases where judges have broadly interpreted the statute, even a case from 1915 where a court reversed the conviction of a doctor who had sent detailed instructions to a woman about how she may procure an abortion — referenced as an “operation.”

But Ms. Perry said those cases are no longer on point, and that the DOJ 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 progressive legal nonprofit People For the American Way, said the abortion pill is the next target of pro-life activists and how the court comes down on the FDA’s authorization of it — and interpretation of federal law regarding the mailing of the pills — will have a significant impact on women.

“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. After 20 Republican attorneys general sent a letter warning Walgreens and CVS of legal consequences, including violations of the Comstock Act, Walgreens said Thursday it would not sell mifepristone in those states.

Mifepristone and misoprostol are the two drugs used in the dual-pill abortion regimen approved by the FDA for pregnancies up to 10 weeks’ gestation. The agency made permanent in January 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 had been included in the law’s original language. But the law was never amended to exclude abortion, a point that Ms. Perry emphasized, saying 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.