Since the Supreme Court overruled Roe v. Wade in 2022, there has been debate about what role, if any, the federal government should play in protecting human life from abortion. At the center of this debate is the Comstock Act and whether it remains enforceable.

The Comstock Act is a pair of statutes, 18 U.S.C. §§ 1461–62, which include provisions related to mail-order abortions. In Section 1461, Congress used its Postal Clause power to restrict mailing abortifacient matter through the United States Postal Service. In Section 1462, Congress exerted its Commerce Clause power to extend this prohibition to the shipment of abortifacient matter through an express company, common carrier, or interactive computer service. Enforcement of these statutes would limit the distribution of chemical abortion drugs from drug manufacturers to abortionists or pharmacies, as well as telemedical dispensing of these drugs to women seeking an abortion.

The statutory history of these laws traces back to the 1800s. Congress passed the precursor to Section 1461 in 1873 and subsequently amended it ten times. The most recent amendment was in 1994. Congress passed the precursor to Section 1462 in 1897, then amended it nine times. The most recent amendment was in 1996, when Congress expanded the prohibition to cover abortifacient matter sent through the internet. With each amendment, Congress has left the mail-order abortion rules intact; it has sometimes expanded them through these amendments, reaffirming the public policy of protecting mothers and unborn children.

Some have contended that these laws are obsolete relics of the 1800s. In legal terms, however, the 1873 and 1897 versions of the laws no longer exist. Congress repealed them in 1909 when it first codified our country’s criminal law, including the mail-order abortion rules. Then in 1948, Congress recodified much of the federal criminal code. It repealed the 1909 laws (and their amendments) and recodified the mail-order abortion rules at their present location in 18 U.S.C. §§ 1461–62. It is noteworthy that Congress chose to retain the mail-order abortion rules when it undertook this massive overhaul of the criminal code. Senator Alexander Wiley—then-chairman of the Senate Judiciary Committee—stated that “[o]bsolete and executed provisions are eliminated” within the codification bill that Congress passed, suggesting that Congress did not view the mail-order abortion rules as obsolete.

These laws are not a novel attempt to restrict abortion nationwide. Rather, they are of a piece with the United States’ legal history and tradition of abortion criminalization, and they are limited applications of Congress’s enumerated powers. When Congress passed the laws in the 1800s, every state restricted abortion, at least after quickening, either at common law or by statute. Subsequently, states with common law crimes of abortion codified—and often expanded—these prohibitions, until every state had a statute restricting abortion throughout pregnancy. This history and tradition lasted until the 1960s, when a minority of states began to pare back their abortion bans. In 1973, Roe abruptly changed this legal tradition by effectively striking down the abortion laws of every state by creating a novel constitutional right to abortion.

Recently, questions have arisen about whether the Comstock laws remain enforceable. When there was an abortion ban in every state, the enforceability question was less of an issue because there was no conflict between federal and state laws. Then, during Roe’s forty-nine-year reign, the mail-order abortion rules were unenforceable because of a woman’s purported constitutional right to abortion. Following Dobbs, the mail-order abortion rules again are enforceable, but we have a different legal landscape than the one that existed prior to Roe. Some states now permit, or even promote, the practice of abortion, which leads to situations in which the abortion industry potentially violates the federal mail-order abortion rules, but is supported by the laws of some states.

Consistent with other abortion laws, the mail-order abortion rules were intended to further the public policy of protecting mothers, not just their unborn children. Abortion historically was dangerous and often lethal for the mother. Abortion has become relatively safer for women with improvements in medicine. However, it still poses significant risks, especially when it is induced by a drug without an in-person ultrasound to accurately confirm gestational age and rule out ectopic pregnancy (a pregnancy that implants outside the uterus, which is a contraindication for a chemical abortion). The increased use of telemedical chemical abortions increases risks for women in the very ways the Comstock laws are meant to reduce them.

Post-Dobbs litigation has raised questions about the applicability of the Comstock Act to the abortion industry. During oral argument in last term’s Food & Drug Administration v. Alliance for Hippocratic Medicine, Justices Thomas and Alito posed questions about the mail-order abortion rules. And even though the Supreme Court ultimately held Alliance for Hippocratic Medicine did not have standing to bring its lawsuit in federal court, three intervenor states—Missouri, Kansas, and Idaho—have raised a claim under the mail-order abortion rules in district court.

On the policy side, members of Congress have introduced bills in both the Senate and House that would repeal the Comstock Act. And the U.S. Department of Justice’s Office of Legal Counsel issued a memorandum opinion that “section 1461 does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully.” If courts apply this reasoning, it will severely limit the application of the mail-order abortion rules.

The mail-order abortion rules are poised to become a significant post-Roe battleground. These laws should be understood in the context of the United States’ legal history and tradition of abortion criminalization; indeed, they are a critical part of how our country limited abortion before Roe.

For more information on these statutes, see Americans United for Life’s recent report, Understanding the Mail-order Abortion Rules Within the Federal “Comstock Act.”

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].