The Comstock Act of 1873 — a Reconstruction-era anti-obscenity law named after anti-vice crusader Anthony Comstock — has re-emerged as a central legal battleground in the fight over reproductive rights. The law, still technically on the books at 18 U.S.C. §§ 1461–1462, prohibits using the mail or common carriers to distribute items “designed, adapted, or intended for producing abortion.” Rendered effectively dormant by Roe v. Wade (1973) and subsequent decisions, the law has been resurrected by anti-abortion advocates following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022) as a potential mechanism to impose a de facto nationwide ban on abortion medication — without requiring any new legislation from Congress (NPR, April 2024; Center for American Progress, 2024).

As of May 2026, the Comstock Act’s enforcement status exists in a paradoxical limbo: the Trump DOJ has not enforced it against abortion medication distributors, has not rescinded the Biden-era memo declining enforcement, yet multiple federal courts and conservative justices have signaled willingness to treat the law as active and enforceable.

Legal and Constitutional Background

The Comstock Act was passed on March 3, 1873, as part of a broader anti-obscenity movement. In its original form, it criminalized mailing contraceptives, obscene materials, and “every article or thing designed, adapted, or intended for producing abortion.” Violations carry penalties of up to five years’ imprisonment for a first offense and up to ten years for subsequent offenses.

Over the 20th century, key court decisions substantially weakened the Act:

• United States v. One Package of Japanese Pessaries (1936) — The Second Circuit held that the Act could not be used to prohibit the mailing of contraceptives prescribed by physicians.
• Griswold v. Connecticut (1965) — The Supreme Court established a constitutional right to contraception for married couples, further undermining Comstock’s reach.
• Eisenstadt v. Baird (1972) — Extended contraception rights to unmarried individuals.
• Roe v. Wade (1973) — Established a constitutional right to abortion, rendering the Act’s abortion provisions unenforceable as a practical matter.

After the Supreme Court overturned Roe in Dobbs v. Jackson Women’s Health Organization (2022), anti-abortion advocates recognized that Comstock — never formally repealed — could potentially be enforced again. Critically, the Act does not require any new legislation; it merely requires a willing Department of Justice to prosecute under existing law.

The Biden-era OLC Memo: In December 2022, the DOJ’s Office of Legal Counsel issued a memo concluding that the Comstock Act does not prohibit the mailing of mifepristone or misoprostol “where the sender lacks the intent that the recipient of the drugs will use them unlawfully.” Because these medications have legal uses in every state (including miscarriage management), a sender cannot be presumed to intend unlawful use. This interpretation is not binding on future administrations (NPR, April 2024; Daily Caller News Foundation, March 2026).

Project 2025’s Plan: The Heritage Foundation’s Project 2025 blueprint explicitly called for the DOJ to enforce Comstock’s criminal prohibitions “against providers and distributors of abortion pills” — effectively using an 1873 law to achieve a nationwide ban that Congress has not passed (Center for American Progress, 2024).

Timeline of Key Actions

• March 3, 1873: Comstock Act enacted, criminalizing the mailing of contraceptives and abortion-related materials (18 U.S.C. §§ 1461–1462).
• 1936–1972: Series of court decisions (One Package, Griswold, Eisenstadt) limit the Act’s applicability to contraceptives.
• 1973: Roe v. Wade renders the Act’s abortion provisions practically unenforceable.
• 1996: Congress amends the Comstock Act, updating its language but leaving the abortion-related provisions in place (Daily Caller News Foundation, March 2026).
• June 24, 2022: Supreme Court decides Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and creating the legal opening for Comstock revival.
• September 2000: FDA approves mifepristone for medication abortion.
• 2021: FDA suspends the in-person dispensing requirement for mifepristone during the COVID-19 pandemic.
• January 2023: FDA permanently removes the in-person dispensing requirement, allowing mifepristone to be prescribed via telehealth and delivered by mail.
• December 2022: Biden DOJ OLC issues memo interpreting Comstock as inapplicable to legal mailings of abortion medication (DOJ OLC Memo, December 2022).
• August 2023: Fifth Circuit Judge James Ho, in a partial dissent, writes that the FDA’s decision to allow mailing mifepristone violates the Comstock Act (Daily Caller News Foundation, March 2026).
• June 2024: Supreme Court decides FDA v. Alliance for Hippocratic Medicine, ruling that anti-abortion doctors lacked standing to challenge FDA’s approval of mifepristone. The merits — including Comstock — go unresolved (Law.com, May 2026).
• January 2025: Trump administration takes office. Attorney General Pam Bondi — Political Accountability Profile does not rescind the Biden-era OLC memo or issue new enforcement guidance on Comstock (Daily Caller News Foundation, March 2026).
• December 2025: Florida and Texas file lawsuits challenging both the original FDA approval of mifepristone and its deregulation, alleging violations of the Comstock Act (Daily Caller News Foundation, March 2026).
• May 1, 2026: Fifth Circuit Court of Appeals blocks mailing of mifepristone, restricting distribution to in-person clinic visits only. The ruling encompasses mifepristone’s use in miscarriage care and other medical applications (Ms. Magazine, May 21, 2026).
• May 14, 2026: Supreme Court issues an emergency stay of the Fifth Circuit ruling, preserving mail-order access to mifepristone while litigation continues. Justice Clarence Thomas dissents, explicitly invoking the Comstock Act and calling the mailing of mifepristone a “criminal enterprise.” No other justice joins his dissent (Law.com, May 14, 2026; Autonomy News, May 2026).
• Ongoing: Louisiana Attorney General Liz Murrill simultaneously attempts to prosecute abortion providers in New York and California for prescribing mifepristone via telemedicine to Louisiana residents (Autonomy News, May 2026).

Key Actors

• Pam Bondi — Political Accountability Profile — Attorney General. Despite anti-abortion record and ties to the America First Policy Institute’s anti-abortion agenda, her DOJ has not enforced the Comstock Act and has continued to rely on the Biden-era OLC memo. Has not publicly committed to either enforcing or not enforcing the Act (Ms. Magazine, January 2025; Daily Caller News Foundation, March 2026).
• Justice Clarence Thomas — Explicitly invoked the Comstock Act in his May 2026 dissent, calling mifepristone shipping a “criminal enterprise” and signaling support for prosecution. Both Thomas and Justice Alito have raised Comstock in prior oral arguments (Ms. Magazine, May 21, 2026; Autonomy News, May 2026).
• Alliance Defending Freedom (ADF) — Christian nationalist law firm leading litigation to restrict mifepristone. Erin Hawley (wife of Sen. Josh Hawley) is lead ADF attorney in mifepristone cases (Autonomy News, May 2026).
• 115 Republican members of Congress — Filed an amicus brief in the Louisiana case arguing that mailing mifepristone violates the Comstock Act (Autonomy News, May 2026).

Legal Challenges

Louisiana v. FDA (5th Circuit / Supreme Court): Louisiana sued the FDA challenging the 2023 decision allowing telehealth prescriptions and mail delivery of mifepristone. The Fifth Circuit blocked mail delivery on May 1, 2026. The Supreme Court issued an emergency stay on May 14, 2026, preserving mail access while litigation continues. A merits decision is expected. ADF represents Louisiana (Law.com, May 2026; Autonomy News, May 2026).

Florida and Texas v. FDA (December 2025): These states challenged both the original FDA approval and subsequent deregulation of mifepristone, explicitly alleging Comstock Act violations. Litigation is ongoing (Daily Caller News Foundation, March 2026).

Missouri, Kansas, and Idaho lawsuits: Pro-life states sought to reinstate FDA safety regulations for mifepristone, including the in-person dispensing requirement. The DOJ asked to pause or dismiss these lawsuits, arguing they should await the FDA’s ongoing safety review (Daily Caller News Foundation, March 2026).

The Standing Question: The Supreme Court’s 2024 ruling in FDA v. Alliance for Hippocratic Medicine found that anti-abortion doctors lacked standing to challenge FDA’s mifepristone protocols. Louisiana’s subsequent lawsuit succeeded on standing by arguing economic injury (Medicaid costs) and sovereignty injury (bypass of state abortion ban). This creates a pathway for state-level challenges that individual plaintiffs could not bring (Law.com, May 2026).

Impact Assessment

Mifepristone Access: Mifepristone is the most common method of abortion in the United States. Since the FDA removed the in-person dispensing requirement in 2023, medication abortion via mail has become a critical access point, particularly in states that have banned or severely restricted surgical abortion.

Beyond Abortion: The Fifth Circuit’s ruling restricting mail delivery encompassed mifepristone’s use in miscarriage management, fibroid treatment, and medical research applications including endometriosis, some cancers, depression, and chronic inflammatory illnesses. The drug is also being studied as a once-weekly contraceptive (Ms. Magazine, May 21, 2026).

The Enforcement Paradox: As of May 2026, the Trump DOJ has not enforced Comstock against any individual or organization mailing abortion medication. The Biden-era OLC memo remains operative. Yet the DOJ has also not defended the legality of mail-order mifepristone on the merits in any pending case, creating uncertainty about its future position (Daily Caller News Foundation, March 2026).

The Five-Year Statute of Limitations: The Comstock Act has a five-year statute of limitations. A future administration that interprets the Act broadly could potentially prosecute violations occurring now — meaning that pharmacies, physicians, and telehealth providers currently mailing mifepristone are operating under legal uncertainty about potential future criminal liability (NPR, April 2024).

State-Level Responses

Shield Law States: Multiple states (including New York, California, and others) have enacted shield laws protecting abortion providers within their borders from out-of-state prosecution.

Red State Litigation: Louisiana, Florida, Texas, Missouri, Kansas, and Idaho have all filed lawsuits seeking to restrict or ban mail-order mifepristone, with several explicitly invoking the Comstock Act.

Cross-Border Prosecution Attempts: Louisiana Attorney General Liz Murrill is attempting to prosecute providers in New York and California for prescribing to Louisiana residents via telemedicine — testing the limits of state sovereignty and interstate enforcement (Autonomy News, May 2026).

For Trump Supporters: Questions Worth Considering

The Comstock Act is an 1873 law that was also used to ban the mailing of contraceptives, sex education materials, and medical textbooks. If the principle is established that the federal government can use a 150-year-old statute — never repealed but long unenforced — to criminalize mailing legal medications, what other dormant laws might a future administration choose to enforce? The question is not whether you support or oppose abortion, but whether you want the federal government to have the power to criminalize the mail delivery of FDA-approved medications without any new act of Congress.

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Sources

1. NPR, “How the Comstock Act could be used to ban abortion nationwide,” April 10, 2024. https://www.npr.org/2024/04/10/1243802678/abortion-comstock-act
2. Center for American Progress, “Project 2025’s Distortion of a Reconstruction-Era Law Could Enact a National Abortion Ban,” 2024. https://www.americanprogress.org/article/project-2025s-distortion-of-a-reconstruction-era-law-could-enact-a-national-abortion-ban/
3. Ms. Magazine, “Conservative Justices Resurrect the Comstock Act, Threatening Abortion Access Nationwide,” May 21, 2026. https://msmagazine.com/2026/05/21/comstock-act-supreme-court-clarence-thomas-mifepristone-fifth-circuit/
4. Law.com / National Law Journal, “Supreme Court Preserves Mail Access to Mifepristone, for Now,” May 14, 2026. https://www.law.com/nationallawjournal/2026/05/14/supreme-court-preserves-mail-access-to-mifepristone-for-now/
5. Autonomy News, “Supreme Court Maintains Mifepristone Access, But Thomas Calls for Comstock Act Prosecutions,” May 2026. https://www.autonomynews.co/supreme-court-maintains-mifepristone-access-but-thomas-calls-for-comstock-act-prosecutions/
6. Daily Caller News Foundation, “Bondi’s DOJ Won’t Enforce One Law That Could Avert Growing Red State Crisis,” March 13, 2026. https://dailycallernewsfoundation.org/2026/03/13/bondis-doj-wont-enforce-one-law-that-could-avert-growing-red-state-crisis/
7. Ms. Magazine, “Reading the Warning Signs: How Trump’s Administration Could Crack Down on Abortion,” January 8, 2025. https://msmagazine.com/2025/01/08/trump-administration-doj-bondi-abortion-pill-comstock-act-mifepristone/
8. 18 U.S.C. §§ 1461–1462 (Comstock Act).
9. DOJ Office of Legal Counsel Memo, “Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions,” December 2022.
10. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
11. FDA v. Alliance for Hippocratic Medicine, 602 U.S. ___ (2024).