DOJ Should Reject Biden-Era Interpretation of Comstock Act Shielding Abortion Drug Mailing
Source: Thomas Jipping. "DOJ Should End Dangerous Loophole Shielding Abortion Drugs." August 21, 2026. thefederalist.com
The Gist
The author argues that the Biden administration's Justice Department twisted an old law (the Comstock Act) to make it impossible to enforce against people mailing abortion pills, and that the new administration should fix this by interpreting the law as written. He also argues that abortion pills are more dangerous than officials admit, and that safety regulations have been weakened for political reasons rather than science.
Conclusion
The Justice Department under AG Todd Blanche should reverse the Biden administration's Office of Legal Counsel interpretation of the Comstock Act and enforce the law's plain prohibition on mailing abortion drugs like mifepristone.
Premises
- The Comstock Act plainly prohibits sending or receiving through the mail any article 'designed, adapted, or intended for producing abortion,' and mifepristone was specifically developed to cause abortion.
- The Biden DOJ's Office of Legal Counsel (OLC) opinion invented an 'intent' requirement not found anywhere in the statute's text, which focuses solely on defining non-mailable objects, not sender intent or recipient use.
- This intent requirement is functionally impossible to prove, rendering the Comstock Act unenforceable and thus not a genuine interpretation but an effective nullification of the law.
- Standard rules of statutory interpretation require adhering to Congress's intended meaning through the ordinary meaning of the text, and the OLC opinion ignored these established interpretive rules.
- Mifepristone has been shown to be dangerous, evidenced by FDA's 1989 import ban, the 1996 advisory committee's call for close medical supervision, and a 2022 study of 850,000 insurance claims finding an 11% serious adverse event rate—20 times higher than commonly claimed.
- Regulatory safety rollbacks (dropping in-person dispensing, dropping complication reporting requirements, allowing full online distribution) were made without genuine safety justification, suggesting a pattern of prioritizing abortion access over women's safety.
- Abortion advocates are deliberately shipping abortion drugs into states that have banned them, compounding the law-breaking and endangering more women.
Assumptions
- Congress's original intent in enacting the Comstock Act was to prohibit mailing any abortion-inducing drugs, without regard to context like state legality changes since enactment.
- The Comstock Act remains applicable and enforceable in the same manner today as when originally enacted, despite significant legal and social changes since then (including Roe v. Wade era non-enforcement).
- Correlational adverse event data from insurance claims accurately reflects direct causal harm specifically attributable to mifepristone rather than confounding factors.
- The DOJ under a Republican administration should actively pursue reinterpretation and enforcement rather than maintaining prosecutorial discretion or existing precedent.
- The characterization of the OLC's intent standard as 'impossible to prove' is accurate rather than merely difficult to prove in some cases.
- Statutory text should be applied literally to modern contexts (mail-order pharmaceuticals) that may not have been contemplated by the original 19th-century legislation.