When a Trump-appointed judge, Matthew J. Kacsmaryk, overrode the Food and Drug Administration’s approval of the abortion pill mifepristone last year, he relied in part on a statute from a 19th-century law.
That law, called the Comstock Act, prevents the mailing of drugs used for abortions. Its abortion-related provisions became potentially enforceable again when five Republican-appointed justices on the Supreme Court — three of whom were installed by former President Trump — eliminated the constitutional right to an abortion in 2022.
The law is named for Anthony Comstock, an anti-vice crusader who became the U.S. postal inspector during the Grant administration. Enacted by Congress in 1873, it barred the mailing of contraceptives and “lewd” materials, along with drugs that could be used to terminate a pregnancy. (Congress later repealed the birth control provision but let the rest stand.)
Specifically, a component of the act declares “nonmailable” every “article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.”
In his ruling, Judge Kacsmaryk wrote, “It is indisputable that chemical abortion drugs are both ‘drug[s]’ and are ‘for producing abortion.’ Therefore, federal criminal law declares they are ‘nonmailable.’”
Before Mr. Trump gave him a life-tenured position on the federal bench, Judge Kacsmaryk had worked as a lawyer for a Christian conservative legal organization.
The judge’s strict interpretation of that statute in the Comstock Act conflicts with a December 2022 opinion by Christopher Schroeder, an emeritus law professor at Duke University who was then President Biden’s appointee to lead the Justice Department’s Office of Legal Counsel.
Professor Schroeder, who has since retired, focused on the fact that mifepristone has medical uses beyond inducing abortions and concluded that abortion-causing drugs could lawfully be sent by mail if the sender does not intend for the recipient to use them unlawfully.
