Application of the Comstock Act to the Mailing of Prescription Drugs

(Slip Opinion)

Application of the Comstock Act to the Mailing of

Prescription Drugs That Can Be Used for Abortions

Section 1461 of title 18 of the U.S. Code does not prohibit the mailing of certain drugs

that can be used to perform abortions where the sender lacks the intent that the recipi-

ent of the drugs will use them unlawfully. Because there are manifold ways in which

recipients in every state may lawfully use such drugs, including to produce an abor-

tion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis

for concluding that the sender intends them to be used unlawfully.

December 23, 2022

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

NITED STATES POSTAL SERVICE

In the wake of the United States Supreme Court’s recent decision over-

ruling Roe v. Wade, 410 U.S. 113 (1973),

you have asked for this Of-

fice’s view on whether section 1461 of title 18 of the United States Code

prohibits the mailing of mifepristone and misoprostol, two prescription

drugs that are commonly used to produce abortions,

among other purpos-

es. Memorandum for Christopher Schroeder, Assistant Attorney General,

Office of Legal Counsel, from Thomas J. Marshall, General Counsel,

United States Postal Service, Re: Request for an Interpretation of 18

U.S.C. § 1461, at 1 (July 1, 2022) (“USPS Request”). Originally enacted

as part of the Comstock Act of 1873, section 1461 currently declares

“[e]very article or thing designed, adapted, or intended for producing

abortion,” as well as “[e]very article, instrument, substance, drug, medi-

cine, or thing which is advertised or described in a manner calculated to

lead another to use or apply it for producing abortion,” to be “nonmailable

matter” that the United States Postal Service (“USPS”) may not lawfully

deliver. 18 U.S.C. § 1461.

We conclude that section 1461 does not prohibit the mailing, or the de-

livery or receipt by mail, of mifepristone or misoprostol where the sender

See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

See Ctrs. for Disease Control & Prevention, U.S. Dep’t of Health & Hum. Servs.,

Abortion Surveillance—United States, 2019, 70 MMWR Surveillance Summaries, Nov.

26, 2019, at 8, https://www.cdc.gov/mmwr/volumes/70/ss/ss7009a1.htm.

46 Op. O.L.C. __ (Dec. 23, 2022)

lacks the intent that the recipient of the drugs will use them unlawfully.

This conclusion is based upon a longstanding judicial construction of the

Comstock Act, which Congress ratified and USPS itself accepted. Federal

law does not prohibit the use of mifepristone and misoprostol. Indeed, the

U.S. Food and Drug Administration (“FDA”) has determined the use of

mifepristone in a regimen with misoprostol to be safe and effective for the

medical termination of early pregnancy.

Moreover, there are manifold

ways in which recipients in every state may use these drugs, including to

produce an abortion, without violating state law. Therefore, the mere

mailing of such drugs to a particular jurisdiction is an insufficient basis

for concluding that the sender intends them to be used unlawfully.

A cognate provision, 18 U.S.C. § 1462, imposes similar abortion-related prohibitions

on using an express company or other common carrier for “carriage” of such items. Our

analysis in this memorandum is applicable to that provision as well.

Sections 1461 and 1462 refer not only to persons who transmit such items by mail or

by common carrier—the senders—but also to individuals who “knowingly cause[]” such

items to be mailed, id. § 1461; “knowingly take[]” any such items from the mail for the

purpose of circulating or disposing of them, id.; or “knowingly take[] or receive[]” such

items from an express company or common carrier, id. § 1462. In the different contexts of

obscenity and child pornography, courts of appeals have held that section 1461 applies to

the act of the recipient who orders the nonmailable material and thereby “causes” it to be

mailed. See, e.g., United States v. Carmack, 910 F.2d 748, 748 (11th Cir. 1990); United

States v. Johnson, 855 F.2d 299, 305–06 (6th Cir. 1988). But see Johnson, 855 F.2d at

307–11 (Merritt, J., dissenting); United States v. Sidelko, 248 F. Supp. 813, 815 (M.D. Pa.

1965). As far as we know, however, these provisions have never been applied to prose-

cute the recipients of abortion- and contraception-related materials. Moreover, the court

of appeals decisions we discuss below construed the relevant provisions of the Comstock

Act to turn on the nature of the sender’s intent, not that of the recipient. Consistent with

this practice, we focus on the sender throughout this memorandum. To the extent a

recipient might be covered, however, our analysis herein would apply and therefore

section 1461 would not prohibit that person from ordering or receiving the drugs if she

does not intend that they be used unlawfully.

See Mifeprex (Mifepristone) Tablets, U.S. Food & Drug Admin. 2 (Mar. 2016),

https://www.accessdata.fda.gov/drugsatfda_docs/label/2019/020687s022lbl.pdf (mifepris-

tone label); see also Mifeprex (Mifepristone) Information, U.S. Food & Drug Admin.,

https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers

/mifeprex-mifepristone-information (last updated Dec. 16, 2021).

For purposes of this opinion, we assume but do not decide that section 1461 could be

constitutionally applied to the mailing of drugs intended to produce abortions. We also

assume without deciding that state law, as well as federal, is relevant to the application of

section 1461. In addition, we do not address here whether and under what circumstances

the mailing of mifepristone or misoprostol might violate other federal laws. Finally, as

Application of the Comstock Act to Drugs That Can Be Used for Abortions

The Comstock Act has a long and complex history. The original 1873

law was the handiwork of Anthony Comstock—“a prominent anti-vice

crusader who believed that anything remotely touching upon sex was . . .

obscene”—who successfully lobbied Congress and state legislatures in the

nineteenth century to enact expansive laws “to prevent the mails from

being used to corrupt the public morals.” Bolger v. Youngs Drug Prods.

Corp., 463 U.S. 60, 70 n.19 (1983) (omission in original) (quotation

marks and citations omitted); see also Priscilla J. Smith, Contraceptive

Comstockery: Reasoning from Immorality to Illness in the Twenty-First

Century, 47 Conn. L. Rev. 971, 982–84 (2015). Originally entitled “An

Act for the Suppression of Trade in, and Circulation of, obscene Litera-

ture and Articles of immoral Use,” Act of Mar. 3, 1873, ch. 258, 17 Stat.

598 (“1873 Act”), the Act is perhaps best known for having prohibited the

distribution of a wide range of writings until courts and the Executive

Branch determined that the Free Speech Clause of the First Amendment

significantly limited the permissible reach of the law, see, e.g., Bolger,

463 U.S. at 69–75. In addition, the Act also included several restrictions

on the conveyance of things designed to prevent conception or to produce

abortion.

Congress largely repealed the references to contraceptives in

you note, USPS Request at 3, some states have independently enacted laws to restrict the

mailing of these drugs for abortion purposes within their jurisdiction. See, e.g., Tex.

Health & Safety Code § 171.063(b-1). We do not here assess the possible effect of federal

law on such state restrictions, other than to note our agreement with your view that the

doctrine of intergovernmental immunity would preclude application of such state laws

against USPS employees who are complying with their duties under federal law. See

Intergovernmental Immunity for the Department of Veterans Affairs and Its Employees

When Providing Certain Abortion Services, 46 Op. O.L.C. __, at *1–5, *10 (Sept. 21,

2022).

The original 1873 Act consisted of five sections, three of which are relevant to this

opinion. Section 1 of the Act prohibited, inter alia, the sale, distribution, or possession, in

the District of Columbia and federal territories, of “any drug or medicine, or any article

whatever, for the prevention of conception, or for causing unlawful abortion,” along with

advertisements for contraceptives and abortion services and information about how to

obtain them. 1873 Act § 1, 17 Stat. at 598–99 (emphasis added). Congress chose not to

include that prohibition when it comprehensively enacted title 18 into positive law in

1948. See Pub. L. No. 80-772, § 21, 62 Stat. 683, 864 (1948) (repealing, inter alia, 18

U.S.C. § 512 (1946)).

Section 2 of the Act, which eventually became codified as section 1461, criminalized

the mailing of, inter alia, “obscene, lewd, or lascivious” writings; “any article or thing

46 Op. O.L.C. __ (Dec. 23, 2022)

1971. See Pub. L. No. 91-662, 84 Stat. 1973 (1971) (discussed infra Part

I.C).

In its current form, section 1461, which is derived from section 2 of the

1873 Act, begins by declaring “[e]very obscene, lewd, lascivious, inde-

cent, filthy or vile article, matter, thing, device, or substance” to be “non-

mailable matter” that “shall not be conveyed in the mails or delivered

from any post office or by any letter carrier.” 18 U.S.C. § 1461. The next

clauses declare nonmailable “[e]very article or thing designed, adapted, or

intended for producing abortion, or for any indecent or immoral use; and

[e]very 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.”

Id.; see also 39 U.S.C. § 3001(a) (likewise declaring such matter to be

“nonmailable”). Section 1461 further makes it a felony to “knowingly

use[] the mails for the mailing, carriage in the mails, or delivery” of any

such things, or to “knowingly cause[]” them “to be delivered by mail

according to the direction thereon.” 18 U.S.C. § 1461. In addition, 18

U.S.C. § 1462 imposes two other, related prohibitions: it makes it unlaw-

ful to bring those same things “into the United States, or any place subject

to the jurisdiction thereof,” and it prohibits the knowing use of “any

intended or adapted for any indecent or immoral use or nature”; and “any article or thing

designed or intended for the prevention of conception or procuring of abortion.” 1873 Act

§ 2, 17 Stat. at 599. Before Congress enacted title 18 into positive law in 1948, the

provision that is now section 1461 was codified at 18 U.S.C. § 334 (1925–1926).

Section 3 of the 1873 Act prohibited all persons “from importing into the United

States” any of the “hereinbefore-mentioned articles or things”—referring to the items

prohibited by sections 1 and 2. 1873 Act § 3, 17 Stat. at 599. One year later, see Act of

June 20, 1874, ch. 333, 18 Stat. pt. 3, at 113–14, Congress codified section 3 of the

Comstock Act as section 2491 of the Revised Statutes and, in doing so, replaced the

section’s reference to the “hereinbefore-mentioned articles or things” with a list of articles

and things pulled from the other provisions of the Comstock Act, see Rev. Stat. § 2491

(1st ed. 1875), 18 Stat. pt. 1, at 460; see also Rev. Stat. § 2491 (2d ed. 1878), 18 Stat.

pt. 1, at 457. In supplying content to these words, Congress prohibited the importation of

articles or things “for causing unlawful abortion,” reflecting the language of section 1 of

the original Comstock Act. Rev. Stat. § 2491 (1st ed. 1875), 18 Stat. pt. 1, at 460. Con-

gress consistently retained the words “unlawful abortion” in follow-on versions of this

restriction, including in subsequent Tariff Acts through 1930, after which the provision

was codified at 19 U.S.C. § 1305.

Application of the Comstock Act to Drugs That Can Be Used for Abortions

express company or other common carrier or interactive computer ser-

vice” for “carriage” of such items “in interstate or foreign commerce.”

Over the course of the last century, the Judiciary, Congress, and USPS

have all settled upon an understanding of the reach of section 1461 and

the related provisions of the Comstock Act that is narrower than a literal

reading might suggest. This construction occurred long before the Su-

preme Court’s decisions in Griswold v. Connecticut, 381 U.S. 479 (1965),

and Roe and thus was not dependent upon the Court’s recognition of

constitutional rights regarding the prevention or termination of pregnancy.

Beginning early in the twentieth century, federal courts construed the

provisions not to prohibit all mailing or other conveyance of items that

can be used to prevent or terminate pregnancy. By the middle of the

century, the well-established, consensus interpretation was that none of

the Comstock Act provisions, including section 1461, prohibits a sender

from conveying such items where the sender does not intend that they be

used unlawfully. USPS accepted that construction and informed Congress

of it. On several occasions, Congress reenacted and amended the Com-

stock Act against the backdrop of the judicial precedent in a manner that

ratified the federal courts’ narrowing construction.

Since early in the twentieth century, federal courts have agreed that

section 1461 and related Comstock Act provisions do not categorically

prohibit the mailing or other conveyance of items designed, adapted, or

intended for preventing or terminating pregnancy.

In 1915, in Bours v. United States, 229 F. 960 (7th Cir. 1915), the U.S.

Court of Appeals for the Seventh Circuit reversed the conviction of a

doctor who had mailed a letter addressing how a woman might procure an

“operation” from him. The court noted that Congress enacted the provi-

sion that is now section 1461 pursuant to its “national power of control-

ling the mails” and held that, “[i]n applying the national statute to an

alleged offensive use of the mails at a named place, it is immaterial what

The importation prohibition—along with 19 U.S.C. § 1305 (prohibiting the importa-

tion into the United States of “any drug or medicine or any article whatever for causing

unlawful abortion”)—derives from section 3 of the original 1873 Act, see § 3, 17 Stat. at

599. The common-carrier prohibitions derive from an 1897 law extending the mailing

prohibitions of the original Comstock Act to common carriers. See Act of Feb. 8, 1897,

ch. 172, 29 Stat. 512.

46 Op. O.L.C. __ (Dec. 23, 2022)

the local statutory definition of abortion is, what acts of abortion are

included, or what excluded.” Id. at 964. The court further held that

“[t]hough the letter of the statute would cover all acts of abortion,” under

a “reasonable construction,” the statute should not be read to prohibit the

mailing of advertisements for a procedure a doctor would perform in

order “to save [the] life” of the woman. Id. Because the indictment had

not drawn this distinction, the defendant had no opportunity to explain

whether he had intended to perform the operation “only under such cir-

cumstances as would make it the duty of any reputable physician to per-

form the act.” Id. at 965. Therefore, the court reversed the judgment and

remanded the case. Id. at 966.

Fifteen years later, in Youngs Rubber Corp. v. C.I. Lee & Co., 45 F.2d

103 (2d Cir. 1930), the U.S. Court of Appeals for the Second Circuit also

reasoned in dicta that the statute could not be construed as expansively as

its language might suggest. Youngs Rubber was a trademark infringement

suit in which the defendants argued that the plaintiff’s business was

unlawful because it involved sending Trojan condoms to druggists for

retail sale via the mail and common carriage, a practice that—according to

the defendant—violated the Comstock Act. Id. at 108. “Taken literally,”

the appeals court wrote, the Comstock Act’s “language would seem to

forbid the transportation by mail or common carriage of anything

‘adapted,’ in the sense of being suitable or fitted, for preventing concep-

tion or for any indecent or immoral purpose, even though the article might

also be capable of legitimate uses and the sender in good faith supposed

that it would be used only legitimately.” Id. “Such a construction,” the

court cautioned, “would prevent mailing to or by a physician of any drug

or mechanical device ‘adapted’ for contraceptive or abortifacient uses,

although the physician desired to use or to prescribe it for proper medical

purposes.” Id. The court observed that New York law did not prohibit

supplying such articles to physicians “or by their direction or prescrip-

tion.” Id. at 109 (quotation marks omitted). Reasoning that “[t]he inten-

tion to prevent a proper medical use of drugs or other articles merely

because they are capable of illegal uses is not lightly to be ascribed to

Congress,” the court construed the statute’s contraception and abortion

prohibitions to “requir[e] an intent on the part of the sender that the article

mailed or shipped by common carrier be used for illegal contraception or

abortion.” Id. at 108.

In 1933, the U.S. Court of Appeals for the Sixth Circuit embraced the

same limiting construction of the Comstock Act. Davis v. United States,

Application of the Comstock Act to Drugs That Can Be Used for Abortions

62 F.2d 473 (6th Cir. 1933), involved a defendant who was convicted of,

among other things, the sale of “rubber sundries” to druggists that were

delivered by common carrier. Id. at 474. Invoking the “rule of reasonable

construction,” id. at 475, the Davis court reversed the conviction because

the district court did not permit the admission of evidence that the defend-

ant had sent the items intending that they be used for “treatment and

prevention of disease” rather than to prevent conception, id. at 474. The

court quoted with approval Youngs Rubber’s view that the statute should

be read to “requir[e] an intent on the part of the sender that the article

mailed or shipped by common carrier be used for illegal contraception or

abortion or for indecent or immoral purposes,” id., and noted that the

“soundness of its reasoning commends itself to us,” id. at 475. The court

accordingly rejected the district court’s conclusion that the statute “brings

within the condemnation of each section articles or things that are capable

of being used for the specified purposes without respect to their having a

legitimate use, and without regard to the intent of the persons mailing

[them],” id. at 474, holding instead that “intent that the articles . . .

shipped in interstate commerce were to be used for condemned purposes

is a prerequisite to conviction,” id. at 475.

Three years later, the Second Circuit revisited the issue and adopted

Youngs Rubber’s dicta as a holding in United States v. One Package, 86

F.2d 737 (2d Cir. 1936). In that case, a New York gynecologist had im-

ported vaginal pessaries from a Japanese sender who had asked the doctor

to use them in her practice to assess whether they were useful for contra-

ceptive purposes. Id. at 738. At the time, New York law prohibited the

sale or provision of articles for the prevention of conception, but it in-

cluded an exception for the provision of such things to physicians “who

may in good faith prescribe their use for the cure or prevention of dis-

ease.” Id. (citing N.Y. Penal Law § 1145 (Consol. Laws, c. 40)). The

doctor testified that she prescribed the items only where her patient had a

health-related reason such that “it would not be desirable for a patient to

undertake a pregnancy,” which the court of appeals apparently understood

to fall within the exception under New York law that permitted physicians

to provide patients with contraceptives for particular purposes. Id.

The

court quoted favorably, and at length, from the dicta in Youngs Rubber,

and noted the accord of the Sixth Circuit in Davis. Id. at 738–39. It then

The court of appeals noted that the accuracy and good faith of the doctor’s testimony

was “not questioned.” One Package, 86 F.2d at 738.

46 Op. O.L.C. __ (Dec. 23, 2022)

dismissed the case because none of the relevant provisions should be read

to prohibit the mailing or importation of items to prevent or terminate

pregnancy with the intent that they be used for lawful purposes. Id. at

739–40. The court reasoned that it was appropriate to, in effect, imply the

insertion of the adjective “unlawful,” which expressly modified the word

“abortion” in some provisions of the Comstock Act, to modify the terms

“prevention of conception” and “abortion” throughout the various provi-

sions that derived from the Act. Id.

The court elaborated:

[W]e are satisfied that this statute, as well as all the acts we have re-

ferred to, embraced only such articles as Congress would have de-

nounced as immoral if it had understood all the conditions under

which they were to be used. Its design, in our opinion, was not to

prevent the importation, sale, or carriage by mail of things which

might intelligently be employed by conscientious and competent

physicians for the purpose of saving life or promoting the well being

of their patients. The word “unlawful” would make this clear as to

The case involved the “prevention of conception” prong of the Tariff Act of 1930—a

descendent provision of the original Comstock Act—which prohibited importing articles

“for the prevention of conception or for causing unlawful abortion.” One Package, 86

F.2d at 738 (emphasis added) (quoting 19 U.S.C. § 1305(a) (1934)); see also supra

note 6. The court noted that the original 1873 Comstock Act likewise used the adjective

“unlawful” to modify “abortion” in one of its provisions (section 1—involving the sale

and possession of abortifacients in federal territories) but not in others, and not as to

articles for preventing conception. One Package, 86 F.2d at 739. The court reasoned that

Congress could not reasonably have had the design to make the “unlawful” nature of the

intended use an element of the offense under some of the abortion-related prohibitions but

not others, or as to the importation of items used for abortion but not those used for

contraception. See id. (“[I]n the Comstock Act, . . . the word ‘unlawful’ was sometimes

inserted to qualify the word ‘abortion,’ and sometimes omitted. It seems hard to suppose

that under the second and third sections articles intended for use in procuring abortions

were prohibited in all cases while, under the first section, they were only prohibited when

intended for use in an ‘unlawful abortion.’”). Instead, the court reasoned, the adjective

“unlawful” must in effect be read to modify all of the prohibitions. Id.; see also id. at 740

(Learned Hand, J., concurring) (“[I]t is of considerable importance that the law as to

importations should be the same as that as to the mails; we ought not impute differences

of intention upon slight distinctions in expression.”). The One Package court’s analysis

that the adjective “unlawful” should be read to modify all of the provisions of the Com-

stock Act is bolstered by the 1874 Congress’s understanding of the term “hereinbefore-

mentioned articles” in section 3 of the Comstock Act to prohibit the import only of

articles, drugs, or medicines “for causing unlawful abortion.” See supra note 6; Rev. Stat.

§ 2491 (1st ed. 1875), 18 Stat. pt. 1, at 460.

Application of the Comstock Act to Drugs That Can Be Used for Abortions

articles for producing abortion, and the courts have read an exemp-

tion into the act covering such articles even where the word “unlaw-

ful” is not used. The same exception should apply to articles for pre-

venting conception. . . . It seems unreasonable to suppose that the

national scheme of legislation involves such inconsistencies and re-

quires the complete suppression of articles, the use of which in many

cases is advocated by such a weight of authority in the medical

world.

Id.

The Second Circuit again reaffirmed this construction of the statute

shortly thereafter in United States v. Nicholas, 97 F.2d 510 (2d Cir. 1938),

which involved the Comstock Act’s prohibition on mailing information

about contraception. Citing Youngs Rubber and One Package, the court in

Nicholas noted: “We have twice decided that contraceptive articles may

have lawful uses and that statutes prohibiting them should be read as

forbidding them only when unlawfully employed.” Id. at 512.

Applying

this reading, the court held that USPS was required to deliver a magazine

containing contraception-related information to a magazine editor who

might then distribute it to persons such as physicians who could use the

information lawfully. Id. The court further held that USPS should detain a

book containing such information when it was addressed to an individual

“about whom nothing” was known “except that he was not a physician,”

id. at 511, but allowed for the recipient to “prove whether he is among the

privileged classes” whose possession of the book “would be lawful,” id. at

512.

Although Nicholas described the relevant inquiry as being whether the articles were

“unlawfully employed,” rather than whether the sender intended that they be used unlaw-

fully—the touchstone the court had adopted in Youngs Rubber and One Package—this

difference in phrasing does not reflect a departure relevant to our analysis. The court’s

invocation of those two earlier decisions without qualification, as well as its further

citation to Davis, indicates that it did not intend to deviate from the interpretation of the

Act that the court had adopted in those decisions. Both the Historical and Revision Note

to section 1461 and subsequent federal decisions understood Nicholas similarly. See 18

U.S.C. § 1461 (Historical and Revision Note) (observing that Nicholas followed “[t]he

same rule” as Davis, which held that “the intent of the person” that a mailing “be used for

condemned purposes was necessary for a conviction” (emphasis added)); United States v.

Gentile, 211 F. Supp. 383, 385 n.5 (D. Md. 1962) (citing, inter alia, Nicholas for the

proposition that “contraceptive devices [must be] shipped and received with intent that

they be used for illegal contraception or abortion”).

46 Op. O.L.C. __ (Dec. 23, 2022)

In 1944, the U.S. Court of Appeals for the D.C. Circuit also narrowly

construed the statute in the context of a report about contraceptive materi-

als that a consumer group had published and mailed to individuals who

submitted a signed certificate attesting, “I am married and use prophylac-

tic materials on the advice of a physician.” Consumers Union of United

States, Inc. v. Walker, 145 F.2d 33, 33 (D.C. Cir. 1944). The appeals court

explained that it was “inclined to follow the interpretation [of the Com-

stock Act] which has been adopted in other circuits,” citing to Nicholas,

Davis, Youngs Rubber, and One Package. Id. at 35 & n.11. It therefore

concluded that “Congress did not intend to exclude from the mails proper-

ly prepared information intended for properly qualified people,” and held

that the report “was proper in character within the meaning of those

decisions.” Id. at 35.

Subsequent judicial discussions of the relevant Comstock Act provi-

sions recognized the narrowing construction upon which the courts of

appeals had converged. See, e.g., United States v. Gentile, 211 F. Supp.

383, 385 n.5 (D. Md. 1962) (“It seems clear under the authorities that in

order to make out an offense under this paragraph the Government should

be required to allege and prove that contraceptive devices are shipped and

received with intent that they be used for illegal contraception or abortion

or for indecent or immoral purposes.” (citing Youngs Rubber, Davis, and

Nicholas)); United States v. H.L. Blake Co., 189 F. Supp. 930, 934–35

(W.D. Ark. 1960) (“It would seem reasonable to give the word ‘adapted’ a

more limited meaning than that above suggested and to construe the

whole phrase ‘designed, adapted or intended’ as requiring an intent on the

part of the sender that the article mailed or shipped by common carrier be

used for illegal contraception or abortion or for indecent or immoral

purposes.” (quoting Youngs Rubber, 45 F.2d at 108)); United States v. 31

Photographs, 156 F. Supp. 350, 357 (S.D.N.Y. 1957) (characterizing the

appellate court decisions as “upholding importation of contraceptives and

books dealing with contraception when sought to be brought into the

country for purposes of scientific and medical research,” such that “only

contraceptives intended for ‘unlawful’ use were banned” (citing, inter

alia, One Package, Nicholas, Davis, and Walker)); see also Poe v.

Ullman, 367 U.S. 497, 546 n.12 (1961) (Harlan, J., dissenting) (“[B]y

judicial interpretation . . . the absolute prohibitions of the [Comstock] law

were qualified to exclude professional medical use.” (citing Youngs Rub-

ber, Davis, and One Package)).

Application of the Comstock Act to Drugs That Can Be Used for Abortions

As the court in one of those later cases noted, the analysis in Youngs

Rubber “has been cited many times and has become the law to be applied

to the facts where the question of a violation of the statute . . . is before

the court.” H.L. Blake Co., 189 F. Supp. at 934. Under that “law to be

applied,” the court explained, “it is well established that the defendants

should not be convicted unless it is established beyond a reasonable doubt

that at the time they mailed the sample packages of prophylactics . . . they

intended them to ‘be used for illegal contraception.’” Id. at 935 (quoting

Youngs Rubber, 45 F.2d at 108).

Congress has amended the Comstock Act’s provisions numerous times

since the federal courts’ decisions in Bours, Youngs Rubber, Davis, One

Package, Nicholas, and Walker, each time perpetuating the wording of the

Act’s abortion-related provisions. Moreover, as we explain in greater

detail below, USPS accepted the courts’ narrowing construction of the

Act in administrative rulings, and it informed Congress of the agency’s

acceptance of that construction in connection with Congress’s amendment

of the contraception-related provisions of the Comstock Act.

We conclude that Congress’s repeated actions, taken “[a]gainst this

background understanding in the legal and regulatory system,” Texas

Dep’t of Housing & Cmty. Affs. v. Inclusive Cmtys. Project, 576 U.S. 519,

536 (2015), ratified the Judiciary’s settled narrowing construction. See id.

(“If a word or phrase has been . . . given a uniform interpretation by

inferior courts . . . , a later version of that act perpetuating the wording is

presumed to carry forward that interpretation.” (omissions in original)

(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpre-

The leading cases that established this accepted construction—Youngs Rubber, One

Package, and Davis—each involved items that could be used to prevent conception rather

than to produce abortion. Nevertheless, the canonical passage from Youngs Rubber,

repeated in each of the cases and in others thereafter, referred both to items designed to

prevent conception and to those designed to induce abortions. Moreover, the court in One

Package went to lengths to explain that all of the relevant Comstock Act prohibitions

should be read consistently to require proof of a sender’s intent to facilitate unlawful

downstream use. See supra note 9; see also Bours, 229 F. 960 (construing narrowly the

prohibition on mailing of information about how to obtain abortions). We therefore agree

with your assessment that “there is no apparent reason why the case-law principles

applicable to contraceptive articles (formerly) under Section 1461 would not also apply to

abortion-inducing articles under the same provision.” USPS Request at 3 n.3.

46 Op. O.L.C. __ (Dec. 23, 2022)

tation of Legal Texts 322 (2012))); Lorillard v. Pons, 434 U.S. 575, 580

(1978) (“Congress is presumed to be aware of an administrative or judi-

cial interpretation of a statute and to adopt that interpretation when it re-

enacts a statute without change.”); cf. Bragdon v. Abbott, 524 U.S. 624,

645 (1998) (“When administrative and judicial interpretations have settled

the meaning of an existing statutory provision, repetition of the same

language in a new statute indicates, as a general matter, the intent to

incorporate its administrative and judicial interpretations as well.”);

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 244 n.11 (2009) (holding

that when Congress amended the Individuals with Disabilities Education

Act without altering the text of a provision that the Supreme Court had

previously interpreted, Congress “implicitly adopted [the Court’s] con-

struction of the statute”).

The conclusion that Congress ratified the longstanding judicial view of

the Comstock Act is strongly reinforced by the Historical and Revision

Note that was included in the 1945 report of the House Committee on the

Revision of the Laws

when Congress enacted title 18 of the U.S. Code

into positive law.

That Note subsequently was appended to the official

U.S. Code entries for sections 1461 and 1462. See 18 U.S.C. § 1461

(Historical and Revision Note).

It specifically “invited” the “attention of

Congress” to the courts of appeals’ decisions in Youngs Rubber, Davis,

Nicholas, and One Package, and quoted at length from Youngs Rubber,

including its conclusion that the relevant provisions of the statute should

be construed to require “an intent on the part of the sender that the article

See H.R. Rep. No. 79-152, at A96–97 (1945).

See Pub. L. No. 80-772, 62 Stat. at 768.

The Historical and Revision Notes were written by a staff of experts hired by Con-

gress to revise the U.S. Code in the 1940s, including the editorial staffs of the West and

Thompson publishing companies, the former Chief of the Appellate Section of the

Department of Justice Criminal Division, and other contributors from both inside and

outside of government. See H.R. Rep. No. 79-152, at 1–7 (1945) (describing in detail this

revision process and noting that “[t]he [House] Committee on Revision of the Laws has

exercised close and constant supervision over this work through its general counsel . . .

and its special counsel”). The Supreme Court has discussed or relied on Historical and

Revision Notes numerous times, most frequently during the middle of the twentieth

century. See, e.g., Ex parte Collett, 337 U.S. 55, 65–71 (1949) (discussing a revision note

to 28 U.S.C. § 1404 and concluding that the revision note was highly significant in

determining the meaning of section 1404(a)); W. Pac. R.R. Corp. v. W. Pac. R.R. Co., 345

U.S. 247, 254–55 (1953); Muniz v. Hoffman, 422 U.S. 454, 471–73 (1975).

Application of the Comstock Act to Drugs That Can Be Used for Abortions

mailed or shipped by common carrier be used for illegal contraception or

abortion.” Id.

Congress subsequently amended the Comstock Act four times (in 1955,

1958, 1971, and 1994) without changing the language in any respect that

suggested disagreement with the well-established narrowing interpretation

that the Historical and Revision Note had specifically brought to its atten-

tion. Congress made the third of these amendments in 1971—removing

the Act’s references to contraceptives—after being informed by the Post-

The Note’s complete discussion of the court of appeals decisions is as follows:

The attention of Congress is invited to the following decisions of the Federal courts

construing this section and section 1462 of this title.

In Youngs Rubber Corporation, Inc. v. C. I. Lee & Co., Inc., C.C.A. 1930, 45 F. 2d

103, it was said that the word “adapted” as used in this section and in section 1462

of this title, the latter relating to importation and transportation of obscene matter,

is not to be construed literally, the more reasonable interpretation being to construe

the whole phrase “designed, adapted or intended” as requiring “an intent on the part

of the sender that the article mailed or shipped by common carrier be used for ille-

gal contraception or abortion or for indecent or immoral purposes.” The court

pointed out that, taken literally, the language of these sections would seem to forbid

the transportation by mail or common carrier of anything “adapted,” in the sense of

being suitable or fitted, for preventing conception or for any indecent or immoral

purpose, “even though the article might also be capable of legitimate uses and the

sender in good faith supposed that it would be used only legitimately. Such a con-

struction would prevent mailing to or by a physician of any drug or mechanical de-

vice ‘adapted’ for contraceptive or abortifacient uses, although the physician de-

sired to use or to prescribe it for proper medical purposes. The intention to prevent

a proper medical use of drugs or other articles merely because they are capable of

illegal uses is not lightly to be ascribed to Congress. Section 334 [this section] for-

bids also the mailing of obscene books and writings; yet it has never been thought

to bar from the mails medical writings sent to or by physicians for proper purposes,

though of a character which would render them highly indecent if sent broadcast to

all classes of persons.” In United States v. Nicholas, C.C.A. 1938, 97 F. 2d 510,

ruling directly on this point, it was held that the importation or sending through the

mails of contraceptive articles or publications is not forbidden absolutely, but only

when such articles or publications are unlawfully employed. The same rule was fol-

lowed in Davis v. United States, C.C.A. 1933, 62 F. 2d 473, quoting the obiter

opinion from Youngs Rubber Corporation v. C. I. Lee & Co., supra, and holding

that the intent of the person mailing a circular conveying information for preventing

conception that the article described therein should be used for condemned purpos-

es was necessary for a conviction; also that this section must be given a reasonable

construction. (See also United States v. One Package, C.C.A. 1936, 86 F. 2d 737.)

18 U.S.C. § 1461 (Historical and Revision Note).

46 Op. O.L.C. __ (Dec. 23, 2022)

master General that both the federal courts and USPS had adopted this

narrowing interpretation. See H.R. Rep. No. 91-1105, at 3–4 (1970).

Moreover, we have found no evidence that Congress disapproved of the

interpretation.

Indeed, in 2007 Congress legislated regarding the FDA’s

treatment of mifepristone in a manner consistent with the understanding

that the Comstock Act does not categorically prohibit the covered modes

of conveying abortion-inducing drugs.

Congress’s several actions “perpetuating the wording” of the Comstock

Act’s abortion provisions against the backdrop of a well-established,

settled judicial construction that was brought to Congress’s attention

See supra note 11 (explaining that the courts of appeals’ rationales applied equally

to conveyance of items to prevent conception and to produce abortion).

The House report stated at the outset of its discussion that “[e]xisting statutes com-

pletely prohibit the importation, interstate transportation, and mailing of contraceptive

materials, or the mailing of advertisement or information concerning how or where such

contraceptives may be obtained or how conception may be prevented.” H.R. Rep. No. 91-

1105, at 2. That introductory remark, however, plainly was a reference to the literal text

of the provisions, as opposed to their settled meaning. The report proceeded to convey the

Postmaster General’s description of the settled judicial and administrative narrowing

construction of the statute, noting that it was in tension with the text of the contraception

provisions, and neither the report nor any evidence in the legislative record of which we

are aware expresses the committee’s disagreement with that construction.

In approving a mifepristone product for certain abortions in 2000, the FDA imposed

certain restrictions on distribution as a condition of approval, pursuant to its regulatory

authority. See Letter for Sandra P. Arnold, Vice President, Population Council, from Ctr.

for Drug Evaluation & Rsch., U.S. Food & Drug Admin., Re: NDA 20-687 (Sept. 28,

2000). In the Food and Drug Administration Amendments Act of 2007 (“FDAAA”),

Congress provided that any such restrictions, identified in the FDAAA as “elements to

assure safe use,” were deemed to be a “Risk Evaluation and Mitigation Strategy” that

would continue to be required under the new statutory regime unless and until the FDA

determined that modifications were necessary. See Pub. L. No. 110-85, tit. IX, § 909(b),

121 Stat. 823, 950–51 (2007). In the debate preceding this amendment, critics of the

FDA’s 2000 approval of mifepristone for abortion purposes acknowledged that the

legislation would apply to that mifepristone approval. See 153 Cong. Rec. S5765 (daily

ed. May 9, 2007) (statement of Sen. Coburn); 153 Cong. Rec. S5469–70 (daily ed. May 2,

2007) (statement of Sen. DeMint). Yet neither those critics nor anyone else in the con-

gressional debate mentioned the Comstock Act, even though it would have been natural to

assume that the FDA’s 2000 approval had resulted in the distribution of mifepristone to

certified physicians through the mail or by common carrier. Congress’s decision to carry

forward the FDA’s regulatory conditions for mifepristone without addressing such modes

of distribution suggests that Congress did not understand the Comstock Act to invariably

prohibit the conveyance by mail or common carrier of drugs intended to induce abortions.

Application of the Comstock Act to Drugs That Can Be Used for Abortions

establishes Congress’s acceptance of that narrowing construction. Inclu-

sive Cmtys. Project, 576 U.S. at 536. That construction, as noted, does not

prohibit the mailing of an item that is designed, adapted, or intended for

producing abortion in the absence of an intent by the sender that the item

will be used unlawfully.

USPS has accepted the settled judicial construction of the Comstock

Act—and reported as much to Congress.

In 1951, the Solicitor of the Post Office Department, Roy C. Frank,

wrote to an Arizona postmaster concerning a Planned Parenthood clinic’s

mailing of diaphragms and vaginal jellies to its patients “for medicinal

purposes.” Contraceptive Matter—Mailings—Physicians, 9 Op. Sol.

P.O.D. 47 (1951) (No. 40). Citing “the decisions of the Federal courts,”

Frank opined that a “mailing of contraceptives by a physician to a patient

would not be regarded as a violation” of the Comstock Act. Id. Similarly,

in 1963, when the St. Louis Postmaster detained 490 “contraceptive

devices and substances,” the USPS General Counsel informed him that he

should “dispatch” those items because “there is no available evidence that

the items in each of these parcels were being distributed for unlawful

purposes.” Letter for Harriet F. Pilpel, Greenbaum, Wolff & Ernst, from

Louis J. Doyle, General Counsel, Post Office Department (Oct. 24, 1963)

(on file with the Smith College Libraries). In a letter to the sender Emko

Company’s counsel, the USPS General Counsel added that “should we

obtain evidence in the future that [Emko] is distributing contraceptive

devices and substances for unlawful purposes we will again look into the

matter.” Id.

Of particular importance, when Congress was considering amendments

to the Comstock Act in 1970, USPS brought to Congress’s attention its

acceptance of the Judiciary’s narrowing construction. The Postmaster

General submitted a statement to Congress about his agency’s understand-

ing that “the delivery by mail of contraceptive information or materials

has by court decisions, and administrative rulings based on such deci-

sions, been considered proper in cases where a lawful and permissive

purpose is present.” See H.R. Rep. No. 91-1105, at 3–4 (1970). As a

result, “[t]he lawful mailing . . . of contraceptive articles . . . is dependent

on the interpretation given to the intended purpose.” Id. at 4. The Post-

master General noted that “[w]hat is a lawful purpose within the meaning

46 Op. O.L.C. __ (Dec. 23, 2022)

of the interpretations given, though vaguely identifiable, has with the

passage of time also been considerably broadened” and that “many States

. . . have adopted positive legislation to authorize or encourage public

family planning services.” Id. As a result, by the time the Postmaster

General wrote to Congress in 1970—after the Court’s Griswold decision

holding unconstitutional a state prohibition on the use of contraception—

“it [was] quite clear that the cited law as presently written [was] unen-

forceable.” Id.

The House Ways and Means Committee included the Postmaster Gen-

eral’s statement in its report on the draft amendment and noted that “[i]n

view of” that statement—along with statements supporting the draft

amendment by the Departments of Labor and of Health, Education, and

Welfare—the Committee on Ways and Means was “unanimous in recom-

mending enactment of H.R. 4605.” Id. Congress then amended the Com-

stock Act to repeal most of the Act’s applications to contraceptives. See

Pub. L. No. 91-662, 84 Stat. at 1973–74.

* * * * *

Thus, before the Court’s recognition of a constitutional right to contra-

ception in Griswold and to abortion in Roe, the Judiciary, Congress, and

USPS itself all understood section 1461 and the related provisions of the

Comstock Act not to prohibit the conveyance of articles intended for

preventing conception or producing an abortion where the sender lacks

the intent that those items should be used unlawfully. We further note

that, shortly after Congress amended the Comstock Act in 1971 to elimi-

nate the restrictions on contraceptives, the Supreme Court’s decision in

Roe effectively rendered unenforceable the restrictions on articles “de-

signed, adapted, or intended for producing abortion.” For the past half

century, courts have not had the occasion to elaborate further on the

meaning of the Comstock Act as it relates to abortion, including regarding

Although the 1971 Congress eliminated the preexisting broad prohibitions on send-

ing contraception-related articles and information using the mails or common carriage, it

added a narrower prohibition designed to prevent the mailing of unsolicited contraceptive

items and advertising to private homes. See 39 U.S.C. § 3001(e); see also 18 U.S.C.

§ 1461 (making it a crime to knowingly use the mails to mail anything deemed “nonmail-

able” in section 3001(e)). In Bolger, the Supreme Court held that the ban on unsolicited

advertisements of contraceptives violates the First Amendment. 463 U.S. at 61.

Application of the Comstock Act to Drugs That Can Be Used for Abortions

the sources of law that inform whether an abortion would be “unlawful”

for purposes of the established construction of the Act.

II.

In Part I we demonstrated that, in accord with the prevailing judicial

construction Congress ratified, section 1461 does not prohibit the mailing

of articles that can be used to produce abortion, including mifepristone

and misoprostol, where the sender lacks the intent that those items should

be used unlawfully.

We turn now to address the many circumstances in

which a sender of these drugs typically will lack an intent that they be

used unlawfully.

Federal law does not prohibit the use of mifepristone and misoprostol

for producing abortions. Indeed, the FDA has determined the use of

mifepristone in a regimen with misoprostol to be safe and effective for the

medical termination of early pregnancy. And, to the extent relevant, these

drugs can serve important medical purposes and recipients in every state

can use them lawfully in some circumstances. This is true even when the

drugs would be delivered to an address in a jurisdiction with restrictive

abortion laws, because women who receive the drugs in all fifty states

may, at least in some circumstances, lawfully use mifepristone and miso-

prostol to induce an abortion.

We note that those sending or delivering mifepristone and misoprostol

typically will lack complete knowledge of how the recipients intend to use

them and whether that use is unlawful under relevant law. Therefore, even

when a sender or deliverer of mifepristone or misoprostol, including

USPS, knows that a package contains such drugs—or indeed that they

will be used to facilitate an abortion—such knowledge alone is not a

sufficient basis for concluding that section 1461 has been violated. We

also recognize that USPS may have reason to consider adopting uniform

policies or practices regarding the mailing of mifepristone or misoprostol.

Cf. Smith v. United States, 431 U.S. 291, 304 n.10 (1977) (“[T]he nation-

wide character of the postal system argues in favor of a nationally uni-

form construction of [section] 1461.”).

See supra note 3 (noting that the same test would apply to section 1462 and to recip-

ients of the drugs to the extent those persons might be amenable to prosecution).

46 Op. O.L.C. __ (Dec. 23, 2022)

We have not undertaken the challenging task of a detailed review of

state abortion laws, but we can offer some illustrative uses for mifepris-

tone and misoprostol that the law of a given state would not prohibit:

• First, in most states—where a majority of the U.S. population

lives—abortion continues to be lawful until at least twenty weeks’

gestation. It is very unlikely that someone sending validly prescribed

mifepristone or misoprostol into such states will intend for them to

be used unlawfully.

• Second, even some states that in recent months have enacted or be-

gun to enforce more restrictive abortion laws continue to allow abor-

tion for at least some number of weeks of pregnancy. Use of mife-

pristone and misoprostol to terminate a pregnancy that falls within

that period would be lawful.

• Third, thus far, no state that has enacted or newly begun to enforce

restrictions on abortion in the wake of Dobbs v. Jackson Women’s

Health Organization, 142 S. Ct. 2228 (2022), prohibits abortions

that are necessary to preserve the life of the woman.

Many medical

conditions that make pregnancy potentially life-threatening—for in-

stance, certain heart conditions, pulmonary hypertension, or Marfan

Syndrome

—are known in the first trimester, when women most

commonly use mifepristone and misoprostol to induce an abortion.

Such a use of these drugs to terminate a life-threatening pregnancy

would be lawful.

• Fourth, some state abortion restrictions also include exceptions for

cases of rape or incest, to protect the health of the woman, or where

there are severe fetal anomalies. The use of mifepristone or miso-

See Dobbs, 142 S. Ct. at 2305 n.2 (Kavanaugh, J., concurring) (“Abortion statutes

traditionally and currently provide for an exception when an abortion is necessary to

protect the life of the mother.”); see also Roe, 410 U.S. at 173 (Rehnquist, J., dissenting)

(“[I]f [a state] statute were to prohibit an abortion even where the mother’s life is in

jeopardy, I have little doubt that such a statute would lack a rational relation to a valid

state objective . . . .”).

See, e.g., Inst. of Med., Clinical Prevention Services for Women: Closing the Gaps

103–04 (2011); see also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 737 (2014)

(Kennedy, J., concurring) (noting that “[t]here are many medical conditions for which

pregnancy is contraindicated”).

Application of the Comstock Act to Drugs That Can Be Used for Abortions

prostol to produce an abortion in such cases would therefore be law-

ful.

• Fifth, some states that regulate the conduct of certain actors involved

in abortions do not make it unlawful for the woman herself to abort

her pregnancy. In those contexts, section 1461 might not prohibit the

mailing of mifepristone and misoprostol to a woman in a state with

restrictions on abortion, even if the sender does so with the intent

that the woman use the drugs to produce an abortion.

• Sixth, even if a state prohibits a pregnant person from ingesting mif-

epristone or misoprostol for the purpose of inducing an abortion,

such an individual has a constitutional right to travel to another state

that has not prohibited that activity and to ingest the drugs there.

Someone sending a woman these drugs is unlikely to know where

she will use them, which might be in a state in which such use is

lawful.

• Seventh, federal agencies provide abortion services in some circum-

stances without regard to contrary state law.

Mailings of abortion

See Dobbs, 142 S. Ct. at 2309 (Kavanaugh, J., concurring) (“[M]ay a State bar a

resident of that State from traveling to another State to obtain an abortion? In my view,

the answer is no based on the constitutional right to interstate travel.”); id. (referring to

the question as “not especially difficult”); see also Bigelow v. Virginia, 421 U.S. 809, 824

(1975) (explaining that Virginia could not “prevent its residents from traveling to New

York to obtain [abortion] services or . . . prosecute them for going there” (citing United

States v. Guest, 383 U.S. 745, 757–59 (1966))).

The Department of Veterans Affairs (“VA”), for example, recently has begun

providing abortions to veterans and certain other VA beneficiaries without regard to state

law when the life or health of the woman would be endangered if the pregnancy were

carried to term or the pregnancy is the result of an act of rape or incest. See Reproductive

Health Services, 87 Fed. Reg. 55,287, 55,288 (Sept. 9, 2022). “[S]tates may not restrict

VA and its employees acting within the scope of their federal authority from providing

abortion services as authorized by federal law, including VA’s rule.” Intergovernmental

Immunity for the Department of Veterans Affairs and Its Employees When Providing

Certain Abortion Services, 46 Op. O.L.C. __, at *10; see also 87 Fed. Reg. at 55,294

(noting that state and local laws, including criminal laws, that “restrict[], limit[], or

otherwise impede[] a VA professional’s provision of care permitted by” this new rule

“would be preempted” (citing 38 C.F.R. § 17.419(b))). Also, the Department of Defense

(“DoD”) has for many years provided service members, dependents, and other beneficiar-

ies of DoD health care services with abortion services when a pregnancy is the result of

rape or incest or when continuing the pregnancy would endanger the woman’s life, and

DoD has indicated it will continue to do so without regard to contrary state laws. See

46 Op. O.L.C. __ (Dec. 23, 2022)

medications intended to be used pursuant to these federal authorities

would be lawful under section 1461, because contrary state law

could not constitutionally be applied.

• Finally, individuals use mifepristone and misoprostol for medical

purposes other than to induce abortions and the legality of those uses

would remain unaffected by state restrictions on abortion. For in-

stance, the same dosages of mifepristone and misoprostol that are

used for medication abortion can be used to treat a miscarriage,

and

misoprostol is commonly prescribed for the prevention and treatment

of gastric ulcers.

Thus, no matter where the drugs are delivered, a variety of uses of mif-

epristone and misoprostol serve important medical purposes and are

lawful under federal and state law. Accordingly, USPS could not reasona-

bly assume that the drugs are nonmailable simply because they are being

sent into a jurisdiction that significantly restricts abortion. Nor would

such an assumption based solely on the recipient’s address be reasonable

even if it is apparent that some women in a particular state are using the

drugs in question in violation of state law. Cf. Youngs Rubber, 45 F.2d at

110 (although the volume of the plaintiff’s sales nationwide justified an

inference that the drug stores to which the condoms were being delivered

must have been selling at least some of them for purposes that were

prohibited under state law—“and that plaintiff must know this”—that was

insufficient to conclude that the company intended such illegal conduct by

the recipients).

In conclusion, section 1461 does not prohibit the mailing of mifepris-

tone or misoprostol where the sender lacks the intent that the recipient

will use them unlawfully. And in light of the many lawful uses of mife-

pristone and misoprostol, the fact that these drugs are being mailed to a

Memorandum for Senior Pentagon Leadership from Gilbert R. Cisneros, Jr., Under

Secretary of Defense for Personnel and Readiness, Department of Defense, Re: Ensuring

Access to Essential Women’s Health Care Services for Service Members, Dependents,

Beneficiaries, and Department of Defense Civilian Employees (June 28, 2022).

See, e.g., Honor Macnaughton, Melissa Nothnagle & Jessica Early, Mifepristone and

Misoprostol for Early Pregnancy Loss and Medication Abortion, 103 Am. Fam. Physician

473, 475 (Apr. 15, 2021).

See Cytotec Misoprostol Tablets, U.S. Food & Drug Admin. 5–6 (Aug. 2016),

https://www.accessdata.fda.gov/drugsatfda_docs/label/2018/019268s051lbl.pdf (miso-

prostol label).

Application of the Comstock Act to Drugs That Can Be Used for Abortions

jurisdiction that significantly restricts abortion is not a sufficient basis for

concluding that the mailing violates section 1461.

CHRISTOPHER H. SCHROEDER

Assistant Attorney General

Office of Legal Counsel

While this request was pending, we received a similar request from the Department

of Health and Human Services (“HHS”) regarding the Comstock Act in connection with

the Food and Drug Administration’s Risk Evaluation and Mitigation Strategy for mife-

pristone. We conveyed our conclusions by e-mail to HHS on December 19, 2022, and we

noted there that this memorandum was forthcoming. E-mail for Samuel Bagenstos,

General Counsel, HHS, from Christopher H. Schroeder, Assistant Attorney General,

Office of Legal Counsel, Re: Advice Regarding Comstock (Dec. 19, 2022, 8:31 PM).