The opinion offers limited assurances for activists seeking to work around abortion bans.
The Justice Department has cleared the U.S. Postal Service to deliver abortion drugs to states that have strict limits on terminating pregnancy, and has offered limited assurances that a federal law addressing the issue won’t be used to prosecute people criminally over such mailings.
A legal opinion, from Justice’s Office of Legal Counsel, concludes that a nearly 150-year-old statute aimed at fighting “vice” through the mail is not enforceable against mailings of abortion drugs as long as the sender does not know that the drugs will be used illegally.
“We conclude that [the statute] 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,” OLC chief Christopher Schroeder wrote in the 21-page opinion posted online Tuesday.
Just one week after the Supreme Court overturned Roe v. Wade last June and eliminated the almost half-century-long federal guarantee of abortion rights, the Postal Service asked the Justice Department for legal guidance on how to respond to growing efforts to circumvent state abortion bans by sending abortion drugs to people seeking them in those states.
The newly issued opinion says those who send abortion drugs to states with strict abortion laws won’t “typically” have the degree of knowledge necessary to violate the federal law known as the Comstock Act, which carries criminal penalties of up to five years in prison for a first violation and up to 10 years behind bars for subsequent violations.
The opinion notes that state laws limiting abortion generally include or have been interpreted to include exceptions when the life of the mother is threatened. In addition, it would usually be difficult for someone sending the drugs to know at what stage in pregnancy they would be consumed or where someone would be when taking them, Schroeder wrote.
The Justice Department pronouncement is likely to be welcomed by abortion-rights advocates, although it is not a complete guarantee of legal immunity for those involved in sending or receiving abortion drugs in states that restrict them. The opinion does not preclude state or local prosecutors from using state laws to charge people criminally for such activities.
The Justice Department memo is one of two actions the Biden administration took on Tuesday to protect and expand access to abortion pills — which recently became the most popular method of terminating a pregnancy within the United States.
The Food and Drug Administration also updated its rules for the medication to allow brick-and-mortar pharmacies to dispense them for the first time to patients with a prescription. Pharmacies in more than a dozen states that have near-total bans on abortion, however, will not be able to participate.
The two-pill regimen for inducing an abortion has been the subject of legal, political and regulatory battles since the drugs were first approved decades ago. Those fights only escalated after the Supreme Court overturned Roe v. Wade in June of 2022, and mail delivery of the pills became one of the primary ways patients in GOP-controlled states were able to circumvent newly imposed bans.
Since then, progressive advocacy groups have pushed the Biden administration to take a range of actions to protect and expand access to the procedure and voiced frustration at the White House’s slow and cautious pace in the months following the fall of Roe. The groups, however, praised the new Justice Department memo and FDA rule, calling them “a step in the right direction” but stressing that more is needed.
“In a post-Roe world, patients need all available options to get the care they need, whether in-person, by mail or at the local pharmacy,” said Kirsten Moore, director of the Expanding Medication Abortion Access Project. “Millions of people still live in states where abortion care is banned entirely. The kind of care you get shouldn’t depend on where you live, but that’s the reality anti-abortion politicians have created.”
