The U.S. Postal Service can continue to deliver mifepristone and misoprostol, despite the overturning of Roe v. Wade, says the Justice Department.
Last November, conservative legal group Alliance Defending Freedom filed a federal lawsuit asking a Texas court to ban abortion pills from the U.S. mail. The suit cited an archaic 19th-century anti-obscenity law: the 1873 Comstock Law. Promoted by anti-vice crusader Anthony Comstock and described as a “chastity” law, it banned sending obscene literature, contraceptives, abortifacients or any sexual information through U.S. mail.
After the Supreme Court ruled in Roe v. Wade that women have a fundamental right to abortion, the Comstock Law remained on the books but was not enforced. Now that the Supreme Court has reversed Roe, the question was: Does that law now ban mailing abortion pills?
In response to a request for clarification from the U.S. Postal Service, the Department of Justice’s Office of Legal Counsel issued a legal opinion made public on Jan. 3 stating that the Comstock Law does not prohibit mailing abortion pills if the sender does not know that the medications will be used illegally.
The DOJ opinion, authored by Assistant Attorney General Christopher H. Schroeder, argues the law applies only to “unlawful” abortions. Those sending or delivering pills “typically will lack complete knowledge of how the recipients intend to use them and whether that use is unlawful under relevant law.”
Abortion is allowed by federal law, Schroeder wrote, and every state allows abortion in some circumstances, such as to preserve the life of a pregnant woman.
Individuals receiving abortion pills have “a constitutional right to travel to another state that has not prohibited that activity and to ingest the drugs there,” the opinion reads—so “someone sending a woman these drugs is unlikely to know where she will use them, which might be in a state in which such use is lawful.”
The opinion concludes, “therefore, even when a sender or deliverer of mifepristone or misoprostol, including USPS, knows that a package contains such drugs—or indeed that they will be used to facilitate an abortion—such knowledge alone is not a sufficient basis for concluding that [the law] has been violated.”
The decision applies to USPS and other carriers, such as United Parcel Service and FedEx.
Even when a sender or deliverer of mifepristone or misoprostol, including USPS, knows that a package contains such drugs … such knowledge alone is not a sufficient basis for concluding that [the law] has been violated.
Department of Justice’s Office of Legal Counsel
While the opinion indicates that federal prosecutors will not use the Comstock Law to bring criminal charges against anyone for mailing abortion pills, it does not protect people from charges by state prosecutors under state laws.
In a related victory for abortion pill availability, the FDA announced last week that retail pharmacies can now distribute abortion pills.
“These two decisions by the Justice Department and the FDA are big steps in the right direction and will ensure millions of women across the country have access to medication abortion,” said Sen. Tina Smith (D-Minn.).
Join Ms. magazine on Wednesday, Jan. 18, at 4 p.m. PT / 7 p.m. ET for Everything You Need to Know About Abortion Pills. RSVP here. (Can’t attend the event in person? RSVP anyway and we will be sure to send you a recording.)
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