(Slip Opinion)

1

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 recipient 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 abortion, 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 overruling Roe v. Wade, 410 U.S. 113 (1973),1 you have asked for this Office’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 purposes. 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 Originally enacted 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, medicine, 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 delivery 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.
46 Op. O.L.C. __ (Dec. 23, 2022)

2

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

3

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

4

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, indecent, filthy or vile article, matter, thing, device, or substance” to be “nonmailable 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 unlawful 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. Congress 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

5

express company or other common carrier or interactive computer service” 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 Supreme 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 Comstock 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 provision that is now section 1461 pursuant to its “national power of controlling 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 importation 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)

6

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 circumstances as would make it the duty of any reputable physician to perform 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 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.” 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 prescription.” Id. at 109 (quotation marks omitted). Reasoning that “[t]he 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,” 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

7

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 defendant 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 imported vaginal pessaries from a Japanese sender who had asked the doctor 

to use them in her practice to assess whether they were useful for contraceptive purposes. Id. at 738. At the time, New York law prohibited the 

sale or provision of articles for the prevention of conception, but it included an exception for the provision of such things to physicians “who 

may in good faith prescribe their use for the cure or prevention of disease.” 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.
46 Op. O.L.C. __ (Dec. 23, 2022)

8

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 provisions 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 referred to, embraced only such articles as Congress would have denounced 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 Comstock Act is bolstered by the 1874 Congress’s understanding of the term “hereinbeforementioned 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

9 

articles for producing abortion, and the courts have read an exemption into the act covering such articles even where the word “unlawful” is not used. The same exception should apply to articles for preventing conception. . . . It seems unreasonable to suppose that the 

national scheme of legislation involves such inconsistencies and requires 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 unlawfully—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) 

10

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

submitted a signed certificate attesting, “I am married and use prophylactic 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 Comstock 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 properly 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 provisions 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 Rubber, Davis, and One Package)). 
Application of the Comstock Act to Drugs That Can Be Used for Abortions

11

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 Interpre11 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)

12

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 judicial interpretation of a statute and to adopt that interpretation when it reenacts 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] construction 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 Laws12 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 Congress 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

13

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

the Act’s references to contraceptives—after being informed by the Post15 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 illegal 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 construction 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. 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] forbids 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 followed 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 purposes 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)

14

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 completely 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 congressional 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

15

establishes Congress’s acceptance of that narrowing construction. Inclusive 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 understanding that “the delivery by mail of contraceptive information or materials 

has by court decisions, and administrative rulings based on such decisions, 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 Postmaster General noted that “[w]hat is a lawful purpose within the meaning 
46 Op. O.L.C. __ (Dec. 23, 2022) 

16

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] unenforceable.” Id. 

The House Ways and Means Committee included the Postmaster General’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 recommending enactment of H.R. 4605.” Id. Congress then amended the Comstock 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 contraception 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 eliminate the restrictions on contraceptives, the Supreme Court’s decision in

Roe effectively rendered unenforceable the restrictions on articles “designed, 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 sending 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 “nonmailable” 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

17

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 misoprostol 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 nationwide character of the postal system argues in favor of a nationally uniform construction of [section] 1461.”). 

20 See supra note 3 (noting that the same test would apply to section 1462 and to recipients of the drugs to the extent those persons might be amenable to prosecution). 
46 Op. O.L.C. __ (Dec. 23, 2022) 

18

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

state abortion laws, but we can offer some illustrative uses for mifepristone 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 begun to enforce more restrictive abortion laws continue to allow abortion for at least some number of weeks of pregnancy. Use of mifepristone 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 instance, certain heart conditions, pulmonary hypertension, or Marfan 

Syndrome22—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 miso21 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”).
Application of the Comstock Act to Drugs That Can Be Used for Abortions

19

prostol to produce an abortion in such cases would therefore be lawful.

• 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 mifepristone 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 circumstances 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 beneficiaries 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) 

20

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 instance, 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 mifepristone and misoprostol serve important medical purposes and are

lawful under federal and state law. Accordingly, USPS could not reasonably 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 mifepristone or misoprostol where the sender lacks the intent that the recipient 

will use them unlawfully. And in light of the many lawful uses of mifepristone 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 (misoprostol label). 
Application of the Comstock Act to Drugs That Can Be Used for Abortions

21

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 mifepristone. 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).