It’s probably the oldest federal law that no one has heard of: Section 1461 of the federal criminal code prohibits using the mail to send or receive “any “article or thing designed, adapted, or intended for producing abortion.” First enacted in 1873, this straightforward statute is a potential obstacle to the shift from surgical to chemical abortion. The Biden Justice Department, therefore, has invented a new “interpretation” of this law that would render it unenforceable.
This law is known as the Comstock Act, named for the 19th century anti-vice crusader Anthony Comstock who championed its passage. By defining anything that can be used to produce abortion as “nonmailable matter,” the law prohibits the U.S. Postal Service from conveying, and anyone from knowingly using the mail to deliver, such items.
The Supreme Court’s 1973 decision in Roe v. Wade, which “interpreted” the Constitution to invent a right to abortion, put enforcement of the Comstock Act on hold. Last June, however, the Court corrected its error, overruled Roe, and held that “the Constitution does not confer a right to abortion.” The U.S. Postal Service then asked the Justice Department’s Office of Legal Counsel (OLC) if the Comstock Act prohibited mailing mifepristone or misoprostol, the drugs used for a majority of abortions today.
Properly interpreting any statute requires determining what Congress meant by what it enacted. The Supreme Court has identified several principles, or canons, that keep the focus on this goal. If a statute’s plain, ordinary meaning is unambiguous, then the process of interpretation is finished, and there is no need to rely on “extrinsic” evidence of the statute’s meaning. Using this commonsense approach, the obvious answer to the Postal Service is that, yes, the Comstock Act prohibits mailing abortion drugs.
You can see the dilemma for the Biden administration, which has made maximizing abortion access a top priority. Since Congress alone has the authority to actually amend its statutes, the Biden Justice Department is trying to change the Comstock Act the sneaky way. OLC has issued an opinion that would, in the words of Supreme Court Justice George Sutherland, make the Comstock Act unenforceable by amending it “under the guise of interpretation.”
OLC did not even acknowledge the established process of statutory interpretation. Rather than deriving Congress’s meaning from the statute, OLC tried to impose its preferred meaning upon the statute. OLC’s version of the Comstock Act prohibits mailing abortion drugs only if the sender intends that the recipient use them unlawfully.
The statute says nothing about either senders and their intentions or recipients and the legal status of their anticipated uses. No matter, OLC’s objective was simply to create a requirement for enforcing the Comstock act that cannot be met. The opinion even concedes that “those sending or delivering [abortion drugs] typically will lack complete knowledge of how the recipients intend to use them and whether that use is unlawful under relevant law.”
While the Comstock Act has not been consistently enforced in the past, its application to abortion drugs is especially important today. The Biden Food & Drug Administration, which in 2000 allowed abortion drugs to be marketed, has been loosening or dropping longstanding safety restrictions for prescribing, dispensing, and obtaining them.
The most recent safety standard to go was the requirement that women obtain these dangerous drugs directly from their doctor. Now, women can obtain a prescription online and receive these drugs by mail from a pharmacy, without ever seeing a doctor in person. Major pharmacy chains such as Walgreens and CVS have said they will now be in the abortion drug business.
On Feb. 1, 2023, the attorneys general of 20 states wrote the executive vice president of Walgreens to emphasize that the Comstock Act’s text “could not be clearer” and that its text, “not the Biden administration’s view, is what governs.” Two weeks later, the attorneys general of 22 other states, including Michigan, wrote the leadership of both Walgreens and CVS embracing the Justice Department’s political spin on the Comstock Act.
Lord Acton famously said that power corrupts, and absolute power corrupts absolutely. Thomas Jefferson might have had the same concern in mind when he warned that if the Supreme Court controlled the Constitution’s meaning, it would be a “mere thing of wax…which they may twist and shape into any form they please.” That is exactly how the Justice Department today treats statutes like the Comstock Act that might interfere with a political agenda, proving that abortion corrupts, and corrupts absolutely.
This piece originally appeared in Christian Renewal