Featured Image
Senator James Lankford defending life during Senate floor speech in January 2023Senator James Lankford / YouTube

WASHINGTON, D.C. (LifeSiteNews) — Pro-life leaders in Congress are confronting the Biden administration on its recent actions to promote the mail distribution of abortion pills in violation of federal law at the expense of preborn life and women’s safety.

Earlier in January, the Biden Justice Department’s Office of Legal Counsel (OLC) declared that a provision of a 150-year-old law called the Comstock Act that makes it illegal for the United States Postal Service to deliver any “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” does not mean what it says.

OLC claimed that abortion pills may be freely mailed, delivered, and received “where the sender lacks the intent that the recipient of the drugs will use them unlawfully,” and that “there are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law,” so 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,” despite the fact that the the express purpose of mailing abortion drugs is to circumvent state pro-life laws. 

The stage was previously set for the decision by Biden’s U.S. Food & Drug Administration (FDA) eliminating the requirement that abortion pills only be dispensed in-person to the women taking them.

Now, Sen. James Lankford is leading a letter signed by 41 colleagues to U.S. Attorney General Merrick Garland, and Senate Pro-Life Caucus Chair Cindy Hyde-Smith (R-MS) and Rep. Bob Latta (R-OH) are leading a letter signed by 77 members of Congress to FDA Commissioner Dr. Robert Califf, both condemning these moves.

“While OLC relies on carefully selected excerpts of a few circuit court opinions from the early 20th century to attempt to justify its memo, its conclusions are baseless,” the Lankford letter argues. “Several of the cases focused on the now-repealed portions of the law that dealt with the mailing of contraceptives. However, the memo cites only one case that actually has to do with the statute’s prohibition on mailing material related to abortion, Bours v. United States. Yet, OLC neglects to reference the Court’s assessment in that case that the law ‘indicates a national policy of discountenancing abortion as inimical to the national life.’ Instead of limiting violations to instances ‘where the sender lacks the intent that the recipient of the drugs will use them unlawfully,’ the Court actually said that definitions of abortion under State law were irrelevant.”

“While the use of chemical abortion drugs may be legal in some States, and Federal law does not currently explicitly prohibit the use of such drugs, Federal law does prohibit the mailing or shipping of such items,” it continues. “Despite attempts to downplay this action, the ‘mere mailing’ of these items is expressly what the law has prohibited for nearly 150 years.”

“Beyond the legal flaws in the memo, it is of great concern that OLC makes no effort to adequately or appropriately emphasize that this opinion has no official or binding legal effect on Federal courts or future administrations, and that these laws, which include criminal penalties, are subject to a 5-year statute of limitations,” the letter adds. “An OLC memo cannot rewrite the law, and the plain words of the law are clear. OLC has chosen to promote abortion rather than the law, and is dangerously misleading those would rely on this memo into committing what the Federal law clearly proscribes as criminal activity. It is your Constitutional and moral responsibility to rescind the memo.”

“The FDA’s action promotes dangerous do-it-yourself abortions by mail and telemedicine without ever seeing a doctor in person, and turns brick-and-mortar pharmacies and post offices into abortion centers,” reads the second letter. “Through this abuse of discretion, the FDA has put the profits and political agenda of the abortion industry over the science and clear evidence that abortion drugs present grave dangers to pregnant mothers and their unborn babies.”

“Through its decision to permit no-test, mail-order abortions after a telemedicine visit, the FDA has abandoned its dual obligations to protect the public and vulnerable populations from harm and to comply with Federal law, including Federal requirements to protect patient safety and longstanding Federal criminal laws which expressly prohibit the mailing and shipping of abortion drugs,” the lawmakers led by Hyde-Smith and Latta concludes.

A 2020 open letter from a coalition of pro-life groups to then-FDA Commissioner Stephen Hahn noted that the FDA’s own adverse reporting system says the “abortion pill has resulted in over 4,000 reported adverse events since 2000, including 24 maternal deaths. Adverse events are notoriously underreported to the FDA, and as of 2016, the FDA only requires abortion pill manufacturers to report maternal deaths.” Pro-lifers argue that with the Biden administration completely eliminating the requirement that they be taken under any medical supervision, those events are certain to increase.

Yet the White House and the abortion lobby have determined that, with last summer’s overturn of Roe v. Wade restoring states’ ability to decide their own abortion laws, easy distribution of abortion pills will be one of their chief methods of preserving abortion “access.” In November 2022, Operation Rescue reported that a net decrease of 36 abortion facilities in 2022 has led to the lowest number in almost 50 years, but the chemical abortion business has “surged,” with 64 percent of new facilities built last year specializing in dispensing mifepristone and misoprostol.