Bondi’s DOJ won’t enforce 1 law that could avert growing red state crisis

The Trump administration won’t enforce a key law that could limit the abortion pill crisis facing Republican states.

Attorney General Pam Bondi’s Department of Justice (DOJ) has continued Biden-era opposition to enforcing the Comstock Act, an 1873 law that prohibits mailing anything “designed, adapted, or intended for producing abortion,” while resisting lawsuits by pro-life states seeking to stop the flood of mifepristone entering through the mail.

“It’s curious that they would let a Biden-era legal opinion stand when the administration has been reversing Biden-era positions like a hot knife through butter,” a former DOJ attorney granted anonymity to speak freely told the Daily Caller News Foundation.

During Trump’s first year, the DOJ has been aggressive in litigation, using it to advance policy goals on immigration and election integrity, strategically challenge Supreme Court precedent, push back on “lawfare” that followed Trump on the campaign trail and pursue indictments against prominent Democrats like former FBI Director James Comey and New York Attorney General Letitia James. The DOJ’s solicitor general’s office has filed uninvited briefs at the Supreme Court to support religious liberty, defend Second Amendment rights and back energy companies facing climate change lawsuits.

Yet it has not taken the same bold approach with the abortion pill.

A Biden-era DOJ Office of Legal Counsel (OLC) memo issued in 2022 determined the Comstock Act does not prohibit mailing “mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”

Trump’s DOJ has not issued a new memo or rescinded the old one, and the department declined to comment on whether it has any plans to reevaluate.

Meanwhile, DOJ asked on Friday to pause or dismiss Missouri’s lawsuit, which it brought alongside Kansas and Idaho, asking to reinstate U.S. Food and Drug Administration (FDA) safety regulations for the abortion pill, including the in person dispensing requirement.

The administration wants the court to wait at least until the FDA is finished with its mifepristone safety review, which it has not given a timeline for completion. Days after announcing the review, the FDA quietly approved a new version of the generic abortion pill.

The states “suffer no sovereign injury because they remain free to make and enforce their pro-life policies after Dobbs v. Jackson Women’s Health Org,” the DOJ’s filing claims.

Data from Aid Access, a popular website that promises pills by mail in one to five days, shows 84% of the pill packages it supplied from July 2023 to September 2024 were sent to states with “near-total or telemedicine” bans. The website was among five providers who supplied pills to the DCNF without verifying key eligibility requirements in a 2025 investigation.

“Despite the wave of state-level abortion bans following the overturn of Roe v Wade, recent data suggest that abortion rates have remained steady or even increased,” the study of Aid Access data states. “One plausible contributor is the rise of online asynchronous telemedicine abortion services—particularly those operating under shield laws, which allow US licensed clinicians to provide abortion medications to patients in ban states with protection from legal liability.”

‘More Time’

“In this filing, the Department of Justice requested more time from the court for the FDA to complete its review of mifepristone REMS,” a DOJ spokesperson told the DCNF. “As the Supreme Court recognized in a unanimous ruling less than two years ago, it is the role of the FDA – not the federal courts – to evaluate drug safety data and impose appropriate precautions.”

“This Department of Justice remains committed to advancing President Trump’s pro-life agenda, including through dismissing criminal prosecutions and civil lawsuits against peaceful pro-life advocates targeted by the previous administration, and using the FACE Act to protect pro-life pregnancy centers,” the spokesperson said.

While the Biden administration used the Freedom of Access to Clinic Entrances (FACE) Act to prosecute pro-life activists, Trump’s DOJ has used it to prosecute anti-ICE activists who disrupted a church service in Minnesota. Trump pardoned pro-lifers charged under the law during his first week in office.

The DOJ has also asked to pause Louisiana’s case seeking an end to mail-order abortions until the FDA finishes its review, which the government notes will “necessarily result in a new agency decision that could supersede the 2023 REMS [Risk Evaluation and Mitigation Strategy] Modification.” The district court heard oral arguments on their motion in February.

Under the Biden administration, the FDA stopped enforcing the in-person dispensing requirement in 2021 and permanently removed it in 2023, allowing pills to be sent through the mail. To date, the DOJ has not actually defended the Biden-era rules surrounding mifepristone on their merits.

“At some point, the Department of Justice will be forced to answer our claims on the merits and not just relying on its request to pause the case,” Erik Baptist, director of the Center for Life at the Alliance Defending Freedom, told the DCNF. “Because that motion should be denied.”

The DOJ’s decision to oppose Republican states seeking to reinstate safety requirements has frustrated pro-life groups.

“While Secretary Kennedy is focused on the scourge of Dunkin’ coffee and the DOJ has been busy litigating against concerned Republican leaders in ruby-red states, women and girls are under assault and babies are being killed,” SBA Pro-Life America President Marjorie Dannenfelser said in a statement Friday.

Though the government has not addressed the issue in court filings, Louisiana argues that the FDA’s 2023 decision “directly conflicts with the Comstock Act.” Florida and Texas also allege violations of the Comstock Act in their December lawsuit challenging both the original approval and deregulation of mifepristone.

In an August 2023 partial dissent, Fifth Circuit Judge James Ho agreed that the FDA’s decision to allow mailing mifepristone violates the Comstock Act.

“Comstock is good law that was re-ratified by Congress, that should be enforced precisely because President Trump said the states should be free to protect their citizens from abortion,” the former DOJ attorney said. “Abortionists and Planned Parenthood have found an easy work around through internet and mail order chemical abortion pills crossing state lines. It’s the duty of the federal government to interdict those illegal shipments because they are the only ones with the authority over interstate mail.”

While the DOJ seeks to dismiss cases “almost regardless of subject matter” when the federal government is sued, the former DOJ attorney said this is “no ordinary subject matter.”

Abortion advocates have long understood that the pill would help undermine pro-life laws.

“We knew RU-486 [mifepristone] was going to be very important especially in states where surgical abortions are not permitted,” former Director of HHS’s Office of Women’s Health Ruth B. Merkatz, who worked in the role from 1994 to 1996, said in a 2019 interview. “And if they overturn Roe v. Wade, it’s going to be really important.”

When Congress amended the Comstock Act in 1996, it left in place the part banning mailing materials for producing abortion.

“The federal government is able to enforce the mail-order abortion rules at this moment, they just have not done so,” Sarah Zagorski, senior director for public relations and communication at Americans United for Life, told the DCNF.

“Congress lawfully passed the mail-order abortion rules under its commerce and postal powers,” she said. “While some have argued that the Comstock Act is a 19th century law and obsolete, this is incorrect.”

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