A religious advocacy group who lobbies regularly in the Ohio Statehouse is asking federal prosecutors to push for bans on mail-order abortion medications, even as the U.S. Supreme Court has so far held off on stopping 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, calling on the two to enforce the federal Comstock Act, “as it applies to the interstate mailing of mifepristone” and other drugs used in abortion procedures.
“For decades, federal prosecutors chose not to enforce these provisions,” the letter from Aaron Baer, president of the Center for Christian Virtue, states. “That prosecutorial discretion was a policy choice; it was never a legal determination that the statute was unenforceable or unconstitutional.”
The Comstock Act is a federal law that was passed in 1873, originally to bar “obscene” and “immoral” materials from being circulated through the mail. It noted anything “designed, adapted, or intended for producing abortion” as examples of materials for which distribution was criminalized under the law. Provisions regarding contraception were removed in the early 1970s, and the passage of Roe v. Wade by the U.S. Supreme Court, which legalized abortion nationwide through the Constitution, changed the way the law was seen and enforced.
Though Roe v. Wade was repealed by a separate U.S. Supreme Court decision in 2022, Ohio voters approved an amendment to the state constitution legalizing abortion and other reproductive care in the state. The amendment was approved in 2023 by 57% of voters.
The Comstock Act has come up more recently with discussion of mifepristone, a drug typically used in tandem with misoprostol in a regimen used to perform an abortion without the need for surgery. Abortion rights advocates consider medication abortions to be a safe and more accessible option for low income individuals, and those who don’t live near a clinic that performs abortions, or don’t have reliable transportation to get to and from a clinic.
Medication abortion is now overtaking other methods of abortion in the state, according to the Ohio Department of Health’s annual abortion report. The report also attributes a 15% increase in abortions from 2024 to 2025 to telehealth access.
Despite having been an FDA-approved drug since 2000 and with decades of peer-reviewed research finding complications to be statistically rare, mifepristone has been in the crosshairs of state and federal lawmakers, including Ohio Republican U.S. Sen. Jon Husted, who participated in a congressional hearing on “dangerous abortion drugs” in January.
Most recently, the U.S. Supreme Court has held off on banning mail-order medication abortion distribution as it considers a Louisiana case that asks the court to do just that. In a dissent to a Supreme Court decision in May that continues to block a lower court ruling banning mail distribution of mifepristone, Justice Clarence Thomas brought up the Comstock Act. Thomas said the law still criminalizes mailing of drugs for abortions, and because of the law, he said drug companies should not be allowed to continue distributing mifepristone through the 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 unambiguous,” Baer writes. “It does not contain an exception for FDA-approved drugs, for physician supervision, or for states that have chosen to permit abortion. It says what it says.”
Baer points to Thomas’ dissent in the letter, along with a separate dissent by Justice Samuel Alito, and said he hopes concerns over the mail-order process ” will eventually prevail in the courts.”
But until a decision is made, Baer argues federal prosecutors have an oath to enforce the laws, including the Comstock Act.
“We recognize that prosecutorial discretion is a real and legitimate doctrine,” Baer wrote. “But discretion does not mean abdication.”
The letter asks that Gerace and Toepfer “open investigative inquiries into mail-order abortion providers knowingly shipping mifepristone,” coordinate with the U.S. Postal Inspection Service to “document violations,” and also “pursue prosecution where the evidence supports charges, and make clear to providers that the era of consequence-free Comstock violations has ended.”
Ohio-based abortion rights advocacy group Abortion Forward said the push to enforce the Comstock Act goes against what Ohioans want.
“Ohioans do not find it obscene to access safe and effective medication from trusted healthcare providers via telemedicine,” Abortion Forward executive director Kellie Copeland said in a statement. “But what we do find obscene is lobbyists and lawyers shoving their nose into our doctor’s offices, medicine cabinets, and bedrooms because they think they are better than us.”
The offices of the U.S. attorneys mentioned by the Center for Christian Virtue did not respond to requests for comment from the Capital Journal.