January 12, 2023

Biden DOJ Advises Postal Service that Abortion Drugs can be Mailed Lawfully in All 50 States

President Biden's Department of Justice (DOJ) wrote a slip opinion for the United States Postal Service (USPS) advising that mailing abortion drugs is not a violation of federal or state law.

Christopher Schroeder, Assistant Attorney General for the DOJ Office of Legal Counsel, wrote the slip opinion. He argues that the Comstock Act, which prohibits the mailing of "[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," does not apply to the abortion pills mifepristone and misoprostol "where the sender lacks the intent that the recipient of the drugs will use them unlawfully."

Schroeder writes, "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." He later clarifies, "dosages of mifepristone and misoprostol that are used for medication abortion can be used to treat a miscarriage, and misoprostol is commonly prescribed for the prevention and treatment of gastric ulcers."

Further, Schroeder argues that it is lawful to send deliver doses explicitly provided for abortion even in states that ban abortion. He argues,
"even if a state prohibits a pregnant person from ingesting mifepristone or misoprostol for the purpose of inducing an abortion, such an individual has a constitutional right to travel to another state that has not prohibited that activity and to ingest the drugs there. 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."

Sending abortion drugs for the purpose of causing abortion to a person who lives in a place where abortion is illegal is still fine, according to Schroeder, as long as the sender believes that the mother will travel out of state before ingesting the pills. Such an assumption seems unreasonable, and it is very possible that a sender could still face charges from a pro-life state that would argue otherwise.

Alliance Defending Freedom Senior Counsel Erik Baptist told Live Action News,

“These longstanding federal laws prohibit the distribution of chemical abortion drugs by mail, common carrier, or express company. That means only the chemical drug manufacturer may deliver and distribute these drugs to abortionists around the country. The manufacturer cannot use the U.S. Postal Service, FedEx, UPS, or any third-party courier to distribute chemical abortion drugs to abortionists, pharmacies, or women in the United States.”

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