Mail-order dispensing of the prescription drug mifepristone has become the latest flashpoint in this country’s long-running debate over abortion access. It also has brought back from the dead one of the oldest federal statutes to address that contentious subject. In their fight to limit access to a drug approved by the FDA one quarter of a century ago, abortion opponents have rediscovered the Comstock Act. Although amended on several occasions since 1873, Congress never managed to repeal or clarify its ambiguous language relating to abortion. On its narrowest reading, this provision would have no impact whatsoever on access to mifepristone; conversely, an overly expansive interpretation suggests that it imposes a federal ban on all forms of abortion, by medication or otherwise.
As this Article explains, a more plausible construction falls somewhere between these two extremes, which would jeopardize the dispensing of mifepristone by mail—and, more ominously, perhaps all mechanisms for shipping the drug—at least when labeled for use in abortion, but it should have no impact on access to other drugs when used “off-label” for this purpose and certainly would not interfere with the distribution of general purpose tools used in abortion procedures. Given the anti-vice crusade that animated the Comstock Act, this Article next asks whether the Fifth Amendment might limit its application to medication abortion. Although courts have at times suggested that legislation might fail rational basis scrutiny if designed to serve nothing other than an interest in promoting public morals, recent shifts in related constitutional doctrines make this an unlikely way of reinterring the Comstock Act and facilitating remote access to mifepristone.