How an 1873 Law Could End Mail-Order Abortion
By Daniel Schmid
In all 50 states, no matter which point during pregnancy abortion is deemed “illegal,” women are killing their babies in their own homes with the deadly abortion pill regimen sent straight to their mailboxes.
Ending chemical abortion is becoming the new frontier for the fight for life. As of 2023, a reported 63% of all abortions in the United States were chemical abortions, an increase from 53% in 2020. If we want to protect the innocent unborn in America, we must understand that the battleground for life is shifting from abortion mills to the privacy of one’s home via the USPS.
While some women acquire chemical abortion pills in person, many women, especially in more pro-life states, are opting for mail-order abortions whether prescribed through telehealth or obtained through clandestine backdoor methods. Murderous abortion drugs are being shipped through the mail for “self-managed” abortions where a mother takes a series of pills (often mifepristone/misoprostol) to starve her preborn baby by blocking the hormone progesterone, which is needed for her child’s survival.
How did we even get here as a society –– where mothers are killing their children by taking a pill that was sent to them through the mail? Or is history repeating itself, and what is now, has already been?
The latter would seem to be true since, and in fact, there is a law in place that could end mail-order abortions even though it currently remains largely un-enforced. The Comstock Act, passed by Congress in 1873, 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” (emphasis added).
It is indisputable that the chemical abortion pills are both “drugs” and are “for producing abortion.” Therefore, federal criminal law declares they are “nonmailable.” That alone should suffice to justify a criminal prosecution by a willing prosecutor or attorney general.
Though Comstock is not currently being enforced, it certainly should be. The statute is old, and one of the oldest decisions on it from 1915 said that the reason for the Comstock Act was that it “indicates a national policy of discountenancing abortion as inimical to the national life” (Bours v. United States).
State attorneys general, as well as U.S. Attorney General Pam Bondi, should be emboldened to take on this important fight and enforce Comstock, which would effectively end mail-order abortions. An attorney general could certainly bring a Comstock Act prosecution because it is a criminal statute.
As the Fifth Circuit said in Alliance Hippocratic Medicine v. FDA, No. 23-10362 (5th Cir. 2023), “The Comstock Act prohibits the carriage in interstate commerce of ‘any drug, medicine, article, or thing designed, adapted or intended for producing abortion.’”
In the Fifth Circuit’s decision, it noted that the Comstock Act does not even require “a user of the mails or common interstate carriage intend that an abortion actually occur. Rather, a user of those shipping channels violates the plain text merely by knowingly making use of the mail for a prohibited abortion item.”
Thus, anyone who mails any substance that is advertised for abortion is in violation of federal law. The only thing necessary for this mail-order homicide to end is a willing prosecutor to enforce the law.
The mind rests fondly on a time when even Congress cared about unborn life enough to protect its destruction through the mail and explicitly indicated that it was in the nation’s interest to prohibit such an atrocious act, declaring that anyone who facilitated murder through the mail was a criminal.
Those were the good ole’ days. We should return to them with enforcement of criminal laws that are currently on the books and prohibit the nationwide distribution of abortifacients at the whim of abortionists interested more in money than human life.
Scripture says, “All they that hate [God] love death” (Proverbs 8:36).
In America, you are free to feel that way, but the republic certainly isn’t required to legalize it and allow you to use the post office to facilitate your holocaust.
Originally published by the Standing for Freedom Center.
For more from Daniel Schmid, Associate Vice President of Legal Affairs, click HERE.
Here's the anatomy of this real scandal. Back in 2000, the FDA was manipulated into abandoning the thoroughness of its standard safety investigation regime.
It adopted instead the accelerated approval for emergency medications which had been introduced in the nineties to fast-track new experimental drugs to deal with, inter alia, the alarming HIV/AIDS outbreak.
The sponsors of the abortion pill, the Population Council and Danco, the manufacturers, opportunistically jumped on the expedited bandwagon.
The FDA, under political and media pressure, reneged on its duty of care and claimed an exaggerated emergency need for this drug to be approved. They placed healthy pregnancy in the same emergency basket as the AIDS epidemic. The usual careful regimen was rashly hurtled through this newly instituted “priority review” process.
Research history on Mifepristone drug—inadequate information
Take a look at some of the mistakes made.
1. In 1996, the Population Council filed a new drug application for mifepristone with FDA. The real result, after four years of review following the proper protocols, was a thumbs down—the drug’s distribution could not be declared safe. This result, recorded in a letter, dated February 2000, to the Population Council (the chief advocate for this abortion pill) stated that
“adequate information has not been presented to demonstrate that the drug, when marketed in accordance with the terms of distribution proposed, is safe and effective for use as recommended.”
2. On June 1, 2000, FDA sent another letter to the Population Council setting out proposed restrictions to address serious safety issues. Doctors were to be “trained and authorized by law” to perform surgical abortions. Doctors needed training in administering mifepristone and treating adverse events; and doctors were to have “continuing access (e.g., admitting privileges) to a medical facility equipped for instrumental pregnancy termination, resuscitation procedures, and blood transfusion at the facility or [one hour’s] drive from the treatment facility.”
3. “When FDA’s proposal was leaked to the press, a political and editorial backlash ensued.” (Kacsmaryk)
4. “In response, the Population Council rejected the proposal and repudiated the restrictions the sponsor itself proposed in 1996 — what FDA deemed a “very significant change” in the sponsor’s position. Because “[t]he whole idea of mifepristone was to increase access,” abortion advocates argued that restrictions on mifepristone “would effectively eliminate” the drug’s “main advantage” and would “kill[] the drug.” (Kacsmaryk)
5. Only a few months later, in September 2000, FDA reneged on its safety proposals and gave in to the objections of the Population Council and Danco. Despite its “serious reservations” about mifepristone’s safety, FDA “concluded that there was no need for special certification programs or additional restrictions.”
6. In September 2000, FDA’s February assessment earlier that year was abandoned—replaced with a set of safety precautions that waived the requirement for assessment of the safety and effectiveness of the Misopristol on pediatric patients.
“Be advised, as of April 1, 1999, all applications for new active ingredients, new dosage forms. new indications, new routes of administration, and new dosing regimens are required to contain an assessment of the safety and effectiveness of the product on pediatric patients unless this requirement is waived… We are waiving the pediatric requirement for this action on this application. “
Sixteen years later, in 2016, safety precautions adopted originally in lieu of “adequate information” originally demanded by the FDA were further relaxed.
In 2021, safety precautions were so relaxed that Mifepristone could be sent through the post to be self-administered.