The Comstock Act (18 U.S.C. section 1461) was passed in 1873 and made it a federal crime to mail "obscene, lewd, or lascivious" materials. Courts and prosecutors interpreted the law broadly to cover contraception, abortion drugs, and educational materials about reproductive health. For most of the 20th century, enforcement faded as courts narrowed the statute and Congress repealed many of its provisions.
The law was largely dormant for decades. But after Dobbs, anti-abortion advocates revived the argument that the Comstock Act bars mailing mifepristone and misoprostol nationwide — regardless of state law. If courts accept this reading, the statute could function as a de facto national ban on medication abortion, since the drugs move primarily through the mail.
A 2022 DOJ Office of Legal Counsel memo concluded that mailing abortion medication isn't prohibited when the sender doesn't intend unlawful use. But that interpretation is a policy position, not a court ruling, and could be reversed by future administrations. The Comstock Act's revival illustrates how dormant statutes can be weaponized when political conditions change.
The Comstock Act matters because a 150-year-old law originally aimed at "obscenity" could become the vehicle for a nationwide ban on medication abortion — without Congress ever voting on it. Whether courts accept or reject this reading will determine whether an 1873 statute overrides modern FDA approvals.
People often assume the Comstock Act was repealed. It wasn't — Congress removed some provisions but the core mailing prohibition remains on the books at 18 U.S.C. section 1461. The law was simply unenforced for decades, which is different from being repealed.
The Comstock Act matters because a 150-year-old law originally aimed at "obscenity" could become the vehicle for a nationwide ban on medication abortion — without Congress ever voting on it. Whether courts accept or reject this reading will determine whether an 1873 statute overrides modern FDA approvals.
People often assume the Comstock Act was repealed. It wasn't — Congress removed some provisions but the core mailing prohibition remains on the books at 18 U.S.C. section 1461. The law was simply unenforced for decades, which is different from being repealed.