According to the Comstock Act, the answer seems yes.
THE HISTORY: POLITICS AND THE MAILING OF ABORTIFACIENTS
Founded as a Post-Roe organization, Students for Life of America always knew that Roe v. Wade would one day be gone and planned accordingly. But we were not the only ones with a contingency plan. Corporate Abortion, its friends, and political partners in the Biden Administration prioritized Chemical Abortion Pills and No Test, Online Distribution from day one, something they fast tracked during COVID.
During early days of the pandemic scare, HHS & FDA leaned on fears of the spread of disease to justify dropping health and safety standards that demanded in-person distribution, as though getting COVID was worse than being exposed to injury, infertility, death, and even abusers. This political pandering was never believable, as HHS and FDA did not authorize DIY cancer treatments or other kinds of extreme measures or “self treatment.” But for abortion, they threw away all caution.
This follows a more than 20-year pattern of turning a blind eye to the dangers of Chemical Abortion Pills, as seen in the FDA’s approval of the drug, now being debated in court in a case that Alliance Defending Freedom (ADF) is pursing. The FDA labeled pregnancy as “an illness” to justify dropping proper tests and vetting and to fast-track approval. (The negligence includes ignoring a government review of whether flushing chemically tainted blood, tissue, and human remains would impact the endangered species and the environment at large, which SFLA argues in an innovative Citizen Petition now at the FDA.)
The bottom line: the FDA allowed abortifacients to be mailed, though some states have tried to stop it.
Death by mail was a seismic shift, as when Chemical Abortion Pills were first introduced on the market in 2000 after President Bill Clinton forced the issue, it was with life-saving screening and in-person physician visits. Changes President Barack Obama made weakened the safeguards but kept in-person distribution. But President Joe Biden’s team got rid of almost all health and safety standards, including in-person care, allowing abortionists to just throw the pills in the mail and walk away from what happens next to women.
Mailing was no small thing, and that brings us to the Comstock Act.
First enacted in 1873, the Comstock Act said that the U.S. Postal Service could not be used to send pornography, contraception, and abortion-inducing drugs or devices. Prohibitions against mailing contraception were dropped, some of them after court cases. But the law stands when it comes to stopping the mailing of abortifacients, defined as things with the intent of ending a preborn life.
You can read 18 U.S. Code § 1461 – Mailing obscene or crime-inciting matter – at the Cornell Law School website, here, and the words are not hard to understand:
Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and
Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and
Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and
Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and
Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—
Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. (emphasis added).
But for Planned Parenthood and the abortion industry, that’s a problem.
Mailing the life-ending drugs is crucial to the abortion industry’s business model, as seen by Planned Parenthood’s telemedicine franchise and in international pill pushers such as Aid Access. As a result of the Biden Administration’s efforts to get rid of in-person distribution, they are not only violating Comstock with patients, but they’ve violated the Comstock Act FOR YEARS, assuming Chemical Abortion Pills were shipped to vendors and not hand carried by horse and buggy.
That comes at a price, as the Comstock Act includes CRIMINAL penalties. Someone convicted of mailing abortifacients “shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.”
That’s a lot of jail time for an hourly employee at Planned Parenthood working in the mail room.
ATTACKS ON THE COMSTOCK ACT:
The abortion-supporting left has said that the Comstock Act is an “old” law – too old to follow – and that pro-life Americans are improperly interpreting it. This is almost too silly to discuss, as the abortion industry doesn’t care how OLD a law or idea is, only how well it supports abortion. Just this month in Congress, the ERA, an idea more than 100 years old, got full support. And as NARAL and others have noted, it would introduce abortion into the Constitution, which isn’t new either.
Some argue that the Comstock Act’s language choices are dated and unclear or that people may be dropping things in the mail, not knowing if abortion-causing drugs will be used to end life. One wonders what people might imagine such drugs would be used for … arts and crafts? A pharmaceutical museum? It’s logical to believe that people buy a thing to use for its advertised purpose.
The American Center for Law and Justice offered interesting analysis in letters and briefs in defense of the plainly understood purpose of the Comstock Act, which is to prevent things used for abortion to be mailed. The summary of the points they make is my own. ACLJ Counters Biden DOJ and HHS on Unlawful Distribution of Deadly Abortion Pills
The ACLJ has submitted legal analyses to Attorney General
Merrick Garland and HHS Secretary Xavier Becerra, arguing that the federal statutory ban on mailing abortion drugs means what it says and that an effort by the Biden Administration’s Department of Justice (DOJ) to negate that law rests on faulty premises. This is significant in that after the Dobbs decision the pivot that the Biden Administration made was to prioritize abortion pills.
In an 11-page analysis, ACLJ made the following points in letters to Garland and Becerra.
- Mailing abortion drugs is a crime. The argument that it depends on state law or depends on whether someone intends to commit a crime is silly. The act of facilitating an abortion itself is prohibited. It does not depend on the seller knowing that whoever ordered the pills will use them for an abortion.
- This federal effort does not depend on state law.
- The Biden Administration attempts to stick the word “unlawful” in the act, so that where Chemical Abortion Pills are allowed by state law, breaking the federal prohibition against mailing them is not an issue. But that’s not what the Comstock Act says, so that’s not what the law does.
- The language of Act, in the context of 1915-1944, uses words like “immoral,” “unlawful,” and “for condemned purposes” like synonyms, but not as an element of the crime. Saying otherwise is meant to confuse the issue.
- The Biden Administration tries to rely on state court cases to get rid of the Comstock Act, but the cases selected show that state laws were not permitted to overwrite the federal act. Rather, the cases clarified points.
- The Biden Administration says Congress agrees with them, but Congress did not use the term “unlawfulness” when allowing the Comstock Act to continue with modifications. (Unlawfulness as a term matters because the abortion-loving administration says the FDA calls the pills lawful as do some states, therefore, you can mail it.)
- Mailing contraception is not the same thing as mailing abortifacients. In a number of cases, mailing contraception has been allowed. However, mailing abortifacients has not been allowed by law.
BOTTOM LINE: The law means what it says – Don’t Mail things that cause abortion.
The attempt by the Biden Administration to say that the Comstock Act doesn’t mean what it says is another effort to cheat their way to No Test, Online Distribution and to cover up possible crimes by the abortion industry. Mailing abortifacients is a crime, and while the Biden Administration may use their prosecutorial discretion to ignore the issue, a Republican Administration is likely to take a different view. This is an issue for national pharmacy chains as well, because breaking the law in some states where they welcome abortion is still a federal crime.
SFLA predicts that attacks on the Comstock Act will escalate, as even those who love abortion will find it hard to ignore the facts forever. This is going to court, as pro-life groups like Students for Life of America and SFLAction will fight to keep drugs out the mail, while the abortion industry will attack so they can mail their cash crop. But Biden won’t always be there to pretend that nothing is happening, and it sure does look like crimes are taking place every day in the mail.
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