US Postal Service Can Keep Delivering Abortion Pills Even After Roe Overturned: DOJ Opinion

The U.S. Postal Service (USPS) can continue to deliver abortion pills across the United States even after the Supreme Court has overturned Roe v. Wade in June 2022, the Department of Justice (DOJ) said in a legal opinion on Tuesday.

The memorandum opinion (pdf) from the DOJ’s Office of Legal Counsel was sought by the USPS, which had asked the office whether section 1461 of title 18 of the United States Code “prohibits the mailing of mifepristone and misoprostol,” which are two prescription drugs commonly used to terminate early pregnancies.

Section 1461 was originally enacted as part of the Comstock Act of 1873, and it says that “nonmailable matter” applies to a range of articles, which includes “[e]very article or thing designed, adapted, or intended for producing abortion” and “[e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.”

Under the section, items “shall not be conveyed in the mails or delivered from any post office or by any letter carrier.”

The DOJ’s Office of Legal Counsel said that the USPS’s mailing of the pregnancy-terminating drugs does not violate the section.

“We conclude that section 1461 does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully,” the opinion reads.

It continues: “This conclusion is based upon a longstanding judicial construction of the Comstock Act, which Congress ratified and USPS itself accepted. Federal law does not prohibit the use of mifepristone and misoprostol. Indeed, the U.S. Food and Drug Administration (“FDA”) has determined the use of mifepristone in a regimen with misoprostol to be safe and effective for the medical termination of early pregnancy.

“Moreover, there are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law. Therefore, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.”

USPS Issues Statement

The USPS said in a statement via Reuters that the DOJ opinion “confirms that the Comstock Act does not require the Postal Service to change our current practice, which has been to consider packages containing mifepristone and misoprostol to be mailable under federal law in the same manner as other prescription drugs.”

It added that the opinion “specifies that the mailing of those drugs to a particular jurisdiction that may significantly restrict access to an abortion is not a sufficient basis” for the USPS to not deliver them.

The USPS also noted that it doesn’t take any position on abortion policy at either the federal or state level.

The DOJ legal opinion acknowledged in its footnotes that “some states have independently enacted laws to restrict the mailing of these drugs for abortion purposes within their jurisdiction.”

“We do not here assess the possible effect of federal law on such state restrictions, other than to note our agreement with your view that the doctrine of intergovernmental immunity would preclude application of such state laws against USPS employees who are complying with their duties under federal law,” the memo to the USPS general counsel reads.

FDA Allows Abortion Pill Mifepristone to Be Sent by Mail

Mifepristone is used as part of a chemical abortion process intended to terminate early pregnancies up to 10 weeks after conception. It is also sometimes used for women who have miscarriages.

Chemical abortion involves a two-drug regimen, the first of which (mifepristone) blocks progesterone, which acts to deprive the unborn child of nutrients and stops the pregnancy from progressing, while the second (misoprostol) induces labor to expel the unborn child.

Chemical abortion, also referred to by other terms such as “abortion by medication,” comprise more than half of abortions in the United States.

The Supreme Court’s decision overturning the 1973 Roe v. Wade ruling meant abortion regulation was handed back to the states. The Roe decision had prohibited states from banning abortions prior to when the fetus is deemed “viable”—or potentially able to live outside its mother’s womb—deemed at around the second trimester of pregnancy at 24 weeks, a figure that pro-life advocates consider arbitrary.

The FDA approved mifepristone in 2000 and, since then, has required the drug to be physically dispensed by a doctor and for patients to retrieve it in person.

The FDA under the Biden administration in early 2021, temporarily lifted the requirement, citing the COVID-19 pandemic for doing so. In December 2021, the FDA implemented a rule change that made that temporary change permanent. This means that women can have telemedicine health care consults and receive the abortion drugs by mail “via certified prescribers or pharmacies.”

Both mifepristone and misoprostol have other uses.