This article was originally posted March 27, 2026, on Ed Mechmann’s public policy blog, Stepping Out of the Boat.

Every abortion is a tragedy. But the irresponsible and illegal availability of abortion drugs by mail makes things so much worse. A recent incident in Georgia illustrates the problem and calls out for federal law enforcement against mail-order death.

The Horrible Facts

The facts of the case, as reported so far in the news, are fairly easy to explain.

A Georgia woman was pregnant and wanted an abortion. But Georgia law prohibits abortions after about six weeks of pregnancy, so she wasn’t able to obtain one from a doctor. So she went online and ordered abortion drugs by mail.

She believed that she was only about 14 weeks pregnant. That in itself is a problem, because the abortion drugs are only authorized by the FDA for abortions up to about 10 weeks. In reality, though, she was actually about 22 or 23 weeks pregnant.

When she took the drug, she had a severe negative reaction. She went to the hospital in some distress, and her baby was delivered – alive. But because of the damage done to the baby, she died about an hour later.

Local law enforcement has reacted to this tragedy in a confused way. Police arrested the mother and charged her with murder and with drug offenses because she had taken some oxycodone for pain while she was in distress. When the case went to court, the local district attorney hedged on the appropriate charges, and the mother was released on bond pending further consideration of the case.

The State’s Laws are Inadequate

The situation is confused by the state of the law as it applies to this complicated set of facts. (Please note that I am not a Georgia attorney, so I’m analyzing this as an outsider.)

Georgia’s law bans abortions after a fetal heartbeat can be detected, which is usually around about 6 weeks of gestation. Performing an abortion after that time is a crime with a few narrow exceptions that don’t apply in this case (rape or incest, medical emergency to the mother, or the child cannot sustain life).

The abortion statute doesn’t explicitly exclude the mother of the unborn child from potential criminal liability. However, a decision by Georgia’s Supreme Court about an earlier version of the law held that mothers were immune from prosecution. The current statute is quite different from that earlier one, but I would expect that the courts would come to the same conclusion.

Georgia also has an Unborn Victims of Violence Act, which authorizes prosecutions when a person deliberately causes injury to a child in the womb. But that law explicitly excludes charging a mother with respect to harm she may do to her unborn child. So the prosecutors can’t rely on that theory to prosecute the mother. In fact, it might immunize her completely from prosecution for a deliberate assault on the child.

Ironically, a prosecution of the mother might be possible in a state like New York, which lacks an Unborn Victims of Violence Act but adheres to the traditional “born alive” rule. That old rule holds that a person doesn’t enjoy the protection of the law unless they are actually born alive. Since the girl was born alive in this case, the theory would be that the mother deliberately harmed the child while she was in the womb, and that was the ultimate cause of her death after birth.

It might also be possible in Georgia to charge the mother with endangering the welfare of a minor due to her use of a narcotic drug during pregnancy. That would depend on whether the coroner could establish a causal connection between the mother’s use of oxycodone and the child’s demise. That would not be an easy case to prove.

As you can see, the legal landscape is very complicated in this case. I don’t envy the local district attorney in trying to figure out the best way to proceed. My general bias is against prosecuting mothers even for illegal abortions. I think that heaping one tragedy on another doesn’t accomplish any worthwhile public purpose. That poor mother needs help, not punishment.

The Federal Government Needs to Act

The legal mess in this case is a direct consequence of the federal government’s irresponsible dereliction of duty. That needs to change immediately.

The primary abortion drug, mifepristone, is dangerous to mothers and their children. Its primary clinical use is to kill a human being. It is a murder drug. Mifepristone also has a history of severe side effects for the mother that have been well-documented.

Yet the FDA has not only continued to allow its use, but it also relaxed its rules several years ago to allow it to be dispensed by mail without a physical doctor’s visit or follow-ups. Legal challenges to that dangerous protocol have been unsuccessful. The current administration, which loves to tout its pro-life credentials, has said that it will review the safety of the drug. But they’ve dragged their feet and have even approved the use of a generic version of the pill.

Even worse, the federal government has refused to enforce a clear law that bans the mailing of drugs for abortions.

The federal Comstock Act was first enacted in 1873 and is still on the books. It unambiguously outlaws the use of the mails or any other carrier to send or deliver “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion”. This law plainly conflicts with the FDA rule that permits mailing abortion pills.

The Biden Administration Justice Department issued a flimsy self-serving legal opinion that claimed the Comstock Act only applies if a person knows that the drug will be used for an illegal abortion. But that’s a perfect example of magical thinking – if you wish hard enough, the law will mean something different than what it really says. Courts that are committed to reading laws as they are actually written should easily brush that opinion aside.

To date, the administration has done nothing to enforce this law. In doing so, it guarantees that tragedies like the one in Georgia will continue to happen. A child who deserved to live is dead. And a mother will now face a lifetime of suffering.

The federal government needs to act – now.