Biden Has ‘Constitutional Duty’ to Prosecute Abortionists, 41 Congressmen Tell Biden Admin

The Biden administration has “abdicated its Constitutional responsibility” and must begin “prosecuting those in the abortion industry” who violate a federal law against mailing abortion-inducing drugs, according to a coalition of 41 Members of Congress. In a letter to Attorney General Merrick Garland — which will be published later today and was released exclusively to The Washington Stand — the pro-life congressmen said the Justice Department had “twisted the plain meaning of the law in an effort to promote the taking of unborn life.”

The lawmakers — led by Senator James Lankford (R-Okla.) and Rep. Jim Jordan (R-Ohio) — charge the president with willfully ignoring the Comstock Act, a federal law that forbids sending any item that “can be used or applied for producing abortion” by mail or courier. Last December 27, the Biden administration’s Office of Legal Counsel (OLC) issued an opinion advising abortionists and others that they may ship abortion pills to pro-life states without violating the law, if “the sender lacks the intent that the recipient of the drugs will use them unlawfully.”

Pro-life congressmen say the administration is acting lawlessly and attempting to legislate by executive fiat. Although the law has been amended numerous times since its passage in 1873, “Congress has never repealed these criminal statutes that prohibit the mailing of dangerous chemical abortion drugs nor modified them in a way that restricted them based on the sender’s intent.” In 1978, Congress specifically rejected a bill that would punish only those who “intended” to ship drugs “used to procure an illegal abortion.”

A Biden administration “memo cannot rewrite the law, and the plain words of the law are clear,” says the letter, signed by 22 U.S. senators and 19 U.S. representatives. “It is clear that Congress never understood the law on mailing abortion drugs to mean anything other than what it says. … [T]he Biden administration’s DOJ has not only abdicated its Constitutional responsibility to enforce the law, but also has once again twisted the plain meaning of the law in an effort to promote the taking of unborn life.”

Since the law remains in effect, the attorney general has the “Constitutional duty to enforce these [f]ederal criminal laws contained in sections 1461 and 1462 of title 18 of the U.S. Code according to their plain text as enacted by Congress. That necessarily includes prosecuting those in the abortion industry who are responsible for the dangerous and, sadly, pervasive mailing and interstate or international carriage of abortion drugs.”

Legal scholars immediately disputed the OLC’s guidance, accusing the administration of engaging in misleading and incomplete citations of case law — citations that could lead those who heed its advice into prison. The law’s statute of limitations lasts five years, possibly allowing a future Republican administration, guided by a different understanding of the law, to prosecute offenders. Abortionists who ship mail-order abortion drugs, which now make up 54% of all U.S. abortions, may also face prosecution under dozens of pro-life states’ laws.

The administration “has chosen to promote abortion rather than the law and is dangerously misleading those who would rely on this memo into committing what the [f]ederal law clearly proscribes as criminal activity,” the legislators warn. “We expect that you put the law and your obligation to enforce it above the abortion industry’s dangerous and deadly political agenda.”

The attempt to water down federal pro-life protections and evade state laws lacks any legal standing, Senator Lankford told “Washington Watch with Tony Perkins” on Tuesday. “The attorney general may yell and scream and say they’re going to file charges against states that actually protect children,” he said. “Quite frankly, our nation is 234 years old; for 185 of those years, states have been allowed to be able to protect the lives of children. The time during Roe v. Wade is the anomaly,” when “the Supreme Court took that [right] away from the states.”

With the Dobbs decision, the authority to craft laws about abortion has returned “to the states and to the people where it should be, not in the hands of the attorney general,” he said.

Nonetheless, Lankford said, President Biden has adamantly attempted to massage legal language to aid Planned Parenthood, which received $633 million in taxpayer funding in 2021, and to placate the abortion activists in the Democratic Party’s base. “They’re trying to turn our VA hospitals into abortion clinics. That was their first step,” Lankford recounted. Then they offered to pay for members of the U.S. military to travel across state lines to procure an abortion, “which is again against federal law. And now it’s violating federal law again on mailing do-it-yourself abortion kits out to people in states like mine that have outlawed abortions.”

“Other presidents have talked about abortion. President Biden’s actually trying to increase the number of abortions,” Lankford told Perkins.