Peter Allevato

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As the regulation of abortion availability returned to the States, many have grappled with so-called trigger laws: dormant laws that were set to take effect to restrict or ensure access to abortion should constitutional protection be revoked. While the federal government has no true trigger law, it does have long-unenforced laws prohibiting the mailing of “[e]very article or thing designed, adapted, or intended for producing abortion.” 18 U.S.C. § 1461 is an old law, and it has not been enforced for at least fifty years. But the law’s potential effect on the growing practice of mail-distribution of chemical abortion pills has not been fully explored. While the law’s application has already begun influencing litigation, this Article is the first scholarly article to explore the textual meaning of § 1461. This Article examines the history of the statute before applying textualist tools of statutory interpretation to conclude that the clear meaning of § 1461 prohibits the mailing of modern abortifacients. It also explores, but ultimately rejects, the primary alternative interpretation and the potential obstacle posed by the statute’s age and nonenforcement.