DOJ Refuses to Enforce Law That Could Limit Abortion Pill Crisis in Red States

The Trump administration won't enforce the Comstock Act, a 1873 law that prohibits mailing anything 'designed, adapted, or intended for producing abortion.'

Mar. 13, 2026 at 3:08pm

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The Trump administration's Department of Justice (DOJ) has continued the Biden-era opposition to enforcing the Comstock Act, a 1873 law that prohibits mailing anything 'designed, adapted, or intended for producing abortion.' This is despite the DOJ being aggressive in litigation on other policy goals. The DOJ has also asked to pause or dismiss lawsuits by pro-life states seeking to reinstate U.S. Food and Drug Administration (FDA) safety regulations for the abortion pill, including the in-person dispensing requirement.

Why it matters

The DOJ's refusal to enforce the Comstock Act is allowing a flood of mifepristone, the abortion pill, to enter Republican states through the mail, despite many of those states having near-total or telemedicine bans on abortion. This is undermining pro-life laws and policies in those states.

The details

The Biden-era DOJ Office of Legal Counsel (OLC) memo issued in 2022 determined the Comstock Act does not prohibit mailing 'mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully.' The Trump DOJ has not issued a new memo or rescinded the old one. Meanwhile, the DOJ has asked to pause or dismiss lawsuits by Missouri, Kansas, and Idaho seeking to reinstate FDA safety regulations for the abortion pill.

  • In 2022, the Biden-era DOJ Office of Legal Counsel issued a memo determining the Comstock Act does not prohibit mailing abortion pills.
  • In 2023, the FDA permanently removed the in-person dispensing requirement for the abortion pill, allowing it to be sent through the mail.

The players

Pam Bondi

The Attorney General of the Department of Justice (DOJ) under the Trump administration.

Marjorie Dannenfelser

The President of SBA Pro-Life America, a pro-life advocacy group.

Erik Baptist

The director of the Center for Life at the Alliance Defending Freedom, a conservative legal organization.

Ruth B. Merkatz

The former Director of HHS's Office of Women's Health from 1994 to 1996.

Sarah Zagorski

The senior director for public relations and communication at Americans United for Life, a pro-life advocacy group.

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What they’re saying

“It's curious that they would let a Biden-era legal opinion stand when the administration has been reversing Biden-era positions like a hot knife through butter.”

— Former DOJ attorney (Daily Caller News Foundation)

“While Secretary Kennedy is focused on the scourge of Dunkin' coffee and the DOJ has been busy litigating against concerned Republican leaders in ruby-red states, women and girls are under assault and babies are being killed.”

— Marjorie Dannenfelser, President of SBA Pro-Life America (SBA Pro-Life America)

“Comstock is good law that was re-ratified by Congress, that should be enforced precisely because President Trump said the states should be free to protect their citizens from abortion.”

— Former DOJ attorney (Daily Caller News Foundation)

“We knew RU-486 [mifepristone] was going to be very important especially in states where surgical abortions are not permitted. And if they overturn Roe v. Wade, it's going to be really important.”

— Ruth B. Merkatz, Former Director of HHS's Office of Women's Health (2019 interview)

“The federal government is able to enforce the mail-order abortion rules at this moment, they just have not done so.”

— Sarah Zagorski, Senior director for public relations and communication at Americans United for Life (Daily Caller News Foundation)

What’s next

The judge in the case will decide on whether to allow the DOJ's request to pause or dismiss the lawsuits by pro-life states seeking to reinstate FDA safety regulations for the abortion pill.

The takeaway

The DOJ's refusal to enforce the Comstock Act is allowing a flood of abortion pills to enter Republican states with pro-life laws, undermining those laws and policies. This raises questions about the administration's commitment to its pro-life agenda and the federal government's role in interdicting illegal shipments of abortion-inducing drugs across state lines.