Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions ( 2022 )

(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
UNITED 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), 1 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, 2 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 Originally enacted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
1 See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
2 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.
1
46 Op. O.L.C. __ (Dec. 23, 2022)
lacks the intent that the recipient of the drugs will use them unlawfully. 3
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. 4 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. 5
3 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 at307–11 (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.
4 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).
5 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
2
Application of the Comstock Act to Drugs That Can Be Used for Abortions
I.
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. 6 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).
6 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
3
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.
4
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.” 7
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.
A.
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
7 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.
5
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,
6
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. 8 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
8 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.
7
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. 9 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
9 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.
8
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. 10 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.
10 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”).
9
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)).
10
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). 11
B.
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-
11The 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.
11
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 12 when Congress enacted title 18 of the U.S. Code
into positive law. 13 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). 14 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
12 See H.R. Rep. No. 79-152, at A96–97 (1945).
13 See Pub. L. No. 80-772, 62 Stat. at 768.
14 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).
12
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. 15
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-
15 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).
13
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). 16
Moreover, we have found no evidence that Congress disapproved of the
interpretation. 17 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. 18
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
16 See supra note 11 (explaining that the courts of appeals’ rationales applied equally
to conveyance of items to prevent conception and to produce abortion).
17 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.
18 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.
14
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.
C.
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
15
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. 19
*****
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
19 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.
16
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. 20 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.”).
20 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).
17
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. 21 Many medical
conditions that make pregnancy potentially life-threatening—for in-
stance, certain heart conditions, pulmonary hypertension, or Marfan
Syndrome 22—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-
21 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 . . . .”).
22 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”).
18
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. 23
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. 24 Mailings of abortion
23 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))).
24 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
19
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,25 and
misoprostol is commonly prescribed for the prevention and treatment
of gastric ulcers. 26
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).
25 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).
26 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).
20
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. 27
CHRISTOPHER H. SCHROEDER
Assistant Attorney General
Office of Legal Counsel
27 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).
21