The Department of Justice is actively opposing pro-life Republican states in federal court, seeking to pause or dismiss their lawsuits to reinstate safety regulations on the abortion pill, all while a Biden-era legal memo shielding mail-order mifepristone from the Comstock Act remains on the books untouched.
Attorney General Pam Bondi's DOJ asked on Friday to pause or dismiss a lawsuit brought by Missouri, Kansas, and Idaho seeking to reinstate FDA safety regulations for mifepristone, including the in-person dispensing requirement the Biden FDA gutted in 2023. The DOJ has made a similar move in Louisiana's case. Florida and Texas filed their own lawsuit in December, challenging both the original approval and deregulation of the drug.
In every instance, the DOJ's posture is the same: delay, defer to the FDA, and argue the states have no standing. The department has not defended the Biden-era mifepristone rules on their merits. It has simply asked courts to wait.
According to the Daily Caller, at the center of this fight sits the Comstock Act, a 1873 federal law that prohibits mailing anything "designed, adapted, or intended for producing abortion." Congress amended the statute in 1996 and left that prohibition intact. It is, by any plain reading, still the law.
In 2022, the Biden DOJ's Office of Legal Counsel issued a memo concluding that the Comstock Act does not prohibit mailing mifepristone or misoprostol where the sender supposedly lacks the intent for unlawful use. It was a creative reading of a straightforward statute, designed to clear the legal path for mail-order abortion pills.
Trump's DOJ has not rescinded that memo. It has not issued a replacement. It declined to comment on whether it has any plans to reevaluate. A former DOJ attorney captured the oddity of this posture:
"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."
The same administration that has filed uninvited briefs at the Supreme Court to defend religious liberty and Second Amendment rights, that has pursued indictments against James Comey and Letitia James, that has used the FACE Act to prosecute anti-ICE activists in Minnesota, has declined to apply that same energy to the one federal statute that could meaningfully limit mail-order abortions in pro-life states.
This is not a theoretical problem. Data from Aid Access, a website that promises abortion pills by mail in one to five days, showed that 84% of the pill packages it supplied from July 2023 to September 2024 were sent to states with "near-total or telemedicine" bans. A 2025 investigation found Aid Access among five providers that supplied pills without verifying key eligibility requirements.
A study of that data found that abortion rates have "remained steady or even increased" despite state-level bans following the Dobbs decision, attributing the trend partly to online providers operating under shield laws that protect clinicians from legal liability when they send pills into ban states.
The abortion industry anticipated this. Ruth B. Merkatz, former Director of HHS's Office of Women's Health, said it plainly in a 2019 interview:
"We knew RU-486 (mifepristone) was going to be very important especially in states where surgical abortions are not permitted. And if they overturn Roe v. Wade, it's going to be really important."
They built the workaround before the wall even went up. And the wall, such as it is, now has a federal government that will not enforce the statute that could close the gap.
A DOJ spokesperson offered a statement that reads like it was written for two audiences at once:
"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."
Those actions are real. The president pardoned pro-lifers charged under the FACE Act during his first week in office. The DOJ has reversed Biden-era prosecutions of pro-life activists. Those are meaningful wins.
But the DOJ's filing in the Missouri case argued that the states "suffer no sovereign injury because they remain free to make and enforce their pro-life policies after Dobbs." That is a statement that sounds reasonable until you consider what it means in practice. States can pass whatever abortion laws they want, but the federal government will not stop the mail from rendering those laws unenforceable. It is a right without a remedy.
The administration's position is that the FDA should finish its mifepristone safety review before the courts act. But the FDA has provided no timeline for completing that review. And days after announcing it, the FDA approved a new version of the generic abortion pill.
Erik Baptist, director of the Center for Life at the Alliance Defending Freedom, put it directly:
"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. Because that motion should be denied."
SBA Pro-Life America President Marjorie Dannenfelser was sharper:
"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."
Sarah Zagorski of Americans United for Life stated the fundamental point: "The federal government is able to enforce the mail-order abortion rules at this moment, they just have not done so." She noted that Congress passed those rules under its commerce and postal powers, and that the argument that the Comstock Act is obsolete "is incorrect."
Fifth Circuit Judge James Ho agreed in an August 2023 partial dissent that the FDA's decision to allow mailing mifepristone violates the Comstock Act. The former DOJ attorney framed the federal responsibility in terms that track with the promise of Dobbs itself:
"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 Dobbs decision was supposed to return the abortion question to the states. That was the promise. Pro-life states took it seriously, passing laws that reflected the will of their voters. But those laws mean very little when pills arrive in one to five days from providers who do not verify eligibility and operate under shield laws that insulate them from consequences.
The federal government holds unique authority over interstate mail. No state can exercise that power on its own. Six states are now suing to get the federal government to do what the Comstock Act already requires. The DOJ's response, across every case, has been to ask for more time and argue that the states lack standing.
The administration has shown it knows how to be aggressive in court. It has shown it knows how to reverse Biden-era positions. It has shown it will spend political capital on fights that matter. The question pro-life groups are now asking is a simple one: why not this fight?
The Comstock Act is still on the books. The pills are still in the mail.