What is the Comstock Act? The 1873 abortion rules Trump won’t enforce

Washington, D.C. Newsroom, Aug 29, 2024 / 15:29 pm (CNA).

Republican presidential candidate Donald Trump made headlines again last week when he said that if he wins this November’s election and returns to the White House, he will not enforce the abortion restrictions in an 1873 law about obscenity.

In an interview with CBS, Trump said that “generally speaking, no,” he would not enforce the Comstock Act, which many conservatives and pro-life advocates see as a possible means to prohibit the delivery of abortion-inducing drugs through the mail.

“[Chemical abortion is] going to be available — and it is now,” Trump said.

The Comstock Act, signed into law by President Ulysses S. Grant in 1873, restricts the delivery of “obscene” and “vile” products and substances through the mail. It was last updated in the 1990s during the administration of President Bill Clinton.

Among the statutes that remain in effect are prohibitions on delivering anything “designed, adapted, or intended for producing an abortion.” It further bans the delivery of any “drug [or] medicine” that is advertised as a product meant to produce an abortion.

In spite of this provision, the U.S. Department of Justice’s Office of Legal Counsel issued a memorandum in 2022 that interpreted the law as only prohibiting the delivery of abortion drugs through the mail if those drugs are intended for unlawful use. The Food and Drug Administration (FDA) quickly adopted this interpretation as justification for its approval of mail-order mifepristone in 2021.

A person still needs a prescription to obtain the mifepristone but does not need to have any in-person doctor visits to get a prescription.

Some pro-life organizations, such as Americans United for Life (AUL), have argued that this interpretation is faulty. In an AUL legal analysis published on Aug. 26, AUL Litigation Counsel Carolyn McDonnell argued that proper enforcement of the law should prohibit mail-in delivery of the drugs.

According to the report, the “statute does not use the phrase ‘unlawful’” and the “memorandum rewrites the plain language of the statute by inserting ‘unlawful’ into the text.”

Although the agency referenced case law to justify its interpretation that this only applies when a person intends to obtain an unlawful abortion, the report argues that this misconstrues the context of the case law.

“In context, and under the legal history and tradition of abortion, an ‘unlawful abortion’ referred to universal state criminalization of abortion,” the report states, “which only had ‘legal justification’ in narrow circumstances, such as medical procedures to save the mother’s life.”

The report goes on to rebut claims that the antiquity of the law suggests it should not be enforced, calling that “a weak legal argument” that “courts overwhelmingly reject.” It adds that Congress has “amended the law nine times,” including as recently as “the 1990s during the Clinton administration,” when it was revised to apply the statute’s provisions to computers.

“Calling the mail-order abortion rules a ‘19th-century statute’ ignores the rich statutory history,” the AUL report maintains.

“In-person visits are necessary for chemical abortions as a matter of basic patient health and safety,” the report adds. “Before a chemical abortion, health care providers must confirm a woman is, in their determination, a medically appropriate candidate for chemical abortion.”

Determining the gestational age of the unborn child also necessitates in-person visitation, the report specifies.

“Within these laws, the mail-order abortion rules prohibit the mailing and shipping of abortifacient matter,” the report concludes. “These rules support the public policy of patient health and safety by ensuring in-person dispensing of chemical abortion drugs.”

Chemical abortions have dramatically risen in use over the past decade, now accounting for more than half of all abortions in the United States. The FDA has authorized the abortion drug mifepristone for aborting an unborn child up to 10 weeks’ gestation, at which point the child has a fetal heartbeat, early brain activity, and partially developed eyes, lips, and nostrils.