The United States Postal Service says that it will continue to mail abortion pills “so long as” the Justice Department’s interpretation of the Comstock Act remains the same, suggesting the agency is leaving the door open for the guidance to change under the Trump administration.
The Comstock Act is a series of federal laws enacted in 1873 that prohibit the shipment of “every article or thing designed, adapted or intended for producing abortion.” The DOJ’s Office of Legal Counsel (OLC) concluded in December 2022 that mailing abortion pills is illegal only when “the sender intends them to be used unlawfully,” after the Postal Service requested guidance from the agency shortly after Roe v. Wade was overturned.
With just a month before President-elect Donald Trump takes office — when he’ll be under conservative pressure to enforce the Comstock Act as a national abortion ban — the Postal Service does not seem to be in a rush to ask for updated guidance.
“The OLC’s analysis concluded that the Comstock Act did not require the Postal Service to change our practice of considering packages containing mifepristone and misoprostol to be mailable under federal law in the same manner as other prescription drugs,” Felicia Lott, the senior public relations representative for the Postal Service, told NOTUS in a statement. “When we requested the OLC opinion, we agreed to abide by its determination, and we will therefore continue to act consistent with the guidance we received so long as it remains the position of OLC.”
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The Comstock Act was largely unenforceable when Roe v. Wade was in place. But even before 1973, it had rarely, if ever, been enforced to prohibit the mailing of abortion pills or medical instruments used in the procedure. But after the Dobbs decision, the Postal Service wondered how Comstock could come into play.
Lott said that the agency sought guidance to “ensure that we are properly fulfilling our universal service mission,” which is “to deliver letters and packages that are mailable under federal law.”
Lott declined to comment on whether the Postal Service would request new guidance under a GOP-controlled Justice Department next year. Pam Bondi, Trump’s pick to lead the department, is a close ally of the anti-abortion movement and will decide whether the December 2022 memo should be rescinded.
Federal law protects some mail, including prescription drugs, from being inspected without a warrant, so it’s unclear how an administration could direct federal officials to open packages to bar the shipment of abortion-related tools when doing so could violate the law.
Conservatives and anti-abortion advocates have long been pressuring Trump to rescind the Biden-era guidance, with at least 20 attorneys general in Republican states arguing that it is “bizarre” because it “ignore[s] the plain text of statutes.”
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Oriana González is a reporter at NOTUS.
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