ROAF Report: Comstock Act Is 'Law of the Land'—Enforce It
The Trump administration must prosecute the illegal mailing of abortion drugs.
Mailing abortion-inducing drugs has long been a federal crime in the United States, yet somehow, mail-order abortions are skyrocketing—and the Justice Department is ignoring the lawlessness. A new Restoration of America Foundation (ROAF) policy paper calls on the Trump administration to correct course to "protect the health of women and save the lives of hundreds of thousands of unborn babies."
ROAF's Law of the Land report, released today, centers on the Comstock Act of 1873. The law expressly bans the mailing of "every article or thing designed, adapted, or intended for producing abortion," among other obscene materials.
Lawmakers have amended Comstock several times in its 153-year history. Yet given ample opportunity to do so, they have not stripped the act’s abortion-related provisions. And though the Supreme Court’s 1973 decision in Roe v. Wade rendered the law unenforceable for nearly half a century, the circumstances, as ROAF points out, have changed.
The Supreme Court's 2022 Dobbs decision overturned Roe, making Comstock once again the law of the land. But instead of upholding that law, "the Biden administration—following its announcement to 'use every lever we have to protect access to abortion care'—deliberately suppressed the Comstock Act’s enforcement," the report notes, referencing a post-Dobbs statement issued by former President Joe Biden’s Health and Human Services secretary.
That statement proved to be more than posturing. Months later, the Biden Justice Department Office of Legal Counsel (OLC) issued a memo that, as ROAF puts it, "deliberately gutted enforcement of the Comstock Act." The Biden Food and Drug Administration then followed up that memo in 2023 by permanently lifting its last meaningful restriction on the abortion drug mifepristone: the in-person dispensing requirement. Now, virtually anyone can order abortion drugs online without any medical guidance whatsoever.
The result has been utter chaos and devastation.
As the legal uncertainty has ratcheted up the discord between red and blue states, a rising wave of coerced abortions has traumatized women across the country, leaving them grieving children much of society won’t even acknowledge. Meanwhile, additional ROAF research found that drug-induced abortions carry a 10.9 percent risk of producing a severe adverse health event—more than 22 times the rate reflected on mifepristone’s label.
The trail of tragedies leads back to the Biden OLC opinion, which the Trump administration has inexplicably failed to revoke. But that's an easy fix, and it’s one the administration should swiftly make.
Legally Conned
The Biden OLC opinion asserted that Congress, the courts, and the U.S. Postal Service had all settled on a narrower scope for Comstock "than a literal reading might suggest," holding that it only applies to materials intended for illegal abortions.
To support that claim, the memo cited irrelevant rulings concerning contraception and the 1915 ruling in Bours v. United States. Yet Bours, the ROAF report says, does not support the OLC's Comstock interpretation—it undermines it.
The case centered on a Milwaukee physician convicted under the Comstock Act. The doctor had responded by mail to a letter inquiring about an abortion, but his letter did not confirm his intent to perform the procedure. It merely invited the would-be patient to his office for an examination.
While the Seventh U.S. Circuit Court of Appeals ultimately overturned the doctor’s conviction, ROAF points out that the ruling did not "allow state abortion laws to be prioritized over Comstock." On the contrary, it deemed such laws "immaterial" to the application of the national statute. The only exception to Comstock that the ruling conceded was for materials to procure an abortion meant to save the mother’s life.
The OLC memo, the report concludes, "is legally untenable. It is not supported by the plain text of the statute or by the only abortion-specific precedent it cites."
The Law Is Clear
The Biden administration's political maneuvering has already cost many Americans dearly.
There's Louisiana woman Rosalie Markezich, who says her boyfriend coerced her into taking mail-order abortion drugs against her will, killing their unborn child.
There's Ohio woman Jona Affholder, whose ex-boyfriend was sentenced to only six months' jail time after he admitted to physically holding her down and force-feeding her abortion pills he ordered online. He has yet to face any federal charges.
Texas woman Catherine Herring's husband spent just 180 days in jail for spiking her water with abortion drugs. Their daughter survived but suffers from developmental delays linked to the failed attempt on her life.
Then there's Alyona Dixon, of Nevada, and Candi Miller, of Georgia, who both died after experiencing severe complications from abortion pills they bought online.
These are only a handful of the tragedies that have occurred under the Biden abortion regime. While they can never be reversed, there is still time to prevent future harm.
During his Senate confirmation, Attorney General Todd Blanche vowed—under oath—to review the Biden-era policy. The ROAF report calls upon the Trump administration to follow through on that promise, rescind the OLC memo, and prosecute Comstock Act violations as felonies.
"The Comstock Act as written means that providing mail-order abortion drugs is a federal crime," the paper notes. "The Trump Administration should reverse the mail-order abortion scheme currently in effect by retracting the Biden-era memo."
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