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A group of religious advocates that regularly lobbies the Ohio Statehouse is asking federal prosecutors to push for a ban on mail-order sales of abortion drugs, even though the U.S. Supreme Court has so far stopped low of ending the practice.
The Columbus-based Center for Christian Virtue sent a letter to Dominick Gerace II, U.S. Attorney for the Southern District of Ohio, and David M. Toepfer, U.S. Attorney for the Northern District of Ohio, urging them to enforce the federal Comstock Act “with respect to the interstate shipment of mifepristone” and other drugs used in abortion procedures.
“For decades, federal prosecutors have chosen not to enforce these laws,” reads the letter from Aaron Baer, president of the Center for Christian Virtue. “This prosecutorial discretion was a political choice; it never constituted a legal determination that the statute was unenforceable or unconstitutional.”
Comstock Act is a federal law passed in 1873 that originally prohibited the distribution of “obscene” and “immoral” material by mail. Examples of material whose distribution was unlawful included anything “designed, adapted or intended for the purpose of performing an abortion.” Contraception laws were removed in the early 1970s, and the U.S. Supreme Court’s passage of Roe v. Wade, which legalized abortion nationwide through the Constitution, changed how the law was perceived and enforced.
Although Roe v. Wade was overturned in a separate U.S. Supreme Court decision in 2022, Ohio voters approved a state constitutional amendment legalizing abortion and other forms of reproductive care in the state. The 2023 amendment was approved by 57% of voters.
The Comstock Act recently brought up discussion of mifepristone, a drug typically used in combination with misoprostol in a regimen used to perform abortions without the need for surgery. Abortion rights supporters view medication abortion as a secure and more accessible option for low-income people and those who do not live near an abortion clinic or do not have reliable transportation to and from the clinic.
Medical abortion now outpace other abortion methods in the state, according to the Ohio Department of Health’s annual abortion report. The report also credits telehealth access with a 15% boost in abortions between 2024 and 2025.
Despite being an FDA-approved drug since 2000 decades of peer-reviewed research Recognizing that complications are statistically scarce, mifepristone has landed in the crosshairs of state and federal lawmakers, including Ohio Republican Sen. Jon Husted, who took part in a congressional hearing on “dangerous abortion drugs” in January.
The U.S. Supreme Court recently held off on banning the distribution of abortion drugs by mail while considering a Louisiana case that asked the court to do so. In opposition to A The Supreme Court’s decision of May this year which continues to block a lower court ruling banning the distribution of mifepristone by mail, Justice Clarence Thomas invoked the Comstock Act. Thomas said the law continues to criminalize the mailing of abortion drugs, and because of that law, he said pharmaceutical companies should not be allowed to continue distributing mifepristone by mail “based on lost profits from their criminal enterprise.”
In its May letter to federal prosecutors, the Center for Christian Virtue argued that the Comstock Act “is not a dead letter.”
“The statute is clear,” Baer writes. “It contains no exception for FDA-approved drugs, medical supervision or for states that choose to allow abortion. It says what it says.”
Baer points to Thomas’s dissent in the letter, as well as Justice Samuel Alito’s separate dissent, and expressed hope that concerns about the mail-order process “will ultimately prevail in the courts.”
But until a decision is made, Baer says federal prosecutors have an oath to enforce laws, including the Comstock Act.
“We hold that prosecutorial discretion is a true and legitimate doctrine,” Baer wrote. “But discretion does not mean abdication.”
The letter asks Gerace and Toepfer to “initiate investigations into mail-order abortion providers who knowingly ship mifepristone,” coordinate with the U.S. Postal Inspection Service to “document violations,” and “initiate criminal prosecution if the evidence supports the allegations, and make clear to providers that the era of unconscionable Comstock violations is over.”
The Ohio-based abortion rights group Abortion Forward said the push to enforce the Comstock Act goes against the wishes of Ohioans.
“Ohioans do not consider it indecent to access safe and effective medicines from trusted health care providers via telemedicine,” Abortion Forward executive director Kellie Copeland said in a statement. “But what we find obscene are lobbyists and lawyers sticking their noses into our doctors’ offices, medicine cabinets and bedrooms because they think they are better than us.”
The U.S. attorneys’ offices mentioned by the Center for Christian Virtue did not respond to requests for comment from the Capital Journal.
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