Justice Dept.: Despite bans, abortion pills may be mailed to any state

The Justice Department has issued a legal opinion that the U.S. Postal Service may deliver abortion pills to people in states that have banned or sharply restricted the procedure, saying that federal law allows the mailing of the pills because the sender cannot know for sure whether the recipient would use them illegally.

The 21-page opinion, posted online late Tuesday, is the latest attempt by Attorney General Merrick Garland to shore up abortion access after a Supreme Court decision last June that allowed states to outlaw the procedure.

More than a dozen states have implemented strict bans on most abortions — including medication abortions — since the Supreme Court’s Dobbs vs. Jackson Women’s Health Organization ruling, which overturned the Roe v. Wade decision that for 50 years had enshrined the right to terminate a pregnancy.

Some states are specifically attempting to block access to abortion pills and crack down on providers who send them by mail. And more states are poised to enact restrictions, prompting new efforts to preserve access to the medications, which can be used to terminate early-stage pregnancies at home and — even before the Dobbs decision — accounted for more than half of all abortions in the United States.

The U.S. Postal Service had asked the Justice Department to say whether it would be legally allowed to deliver pills that could be used for abortion in a state where the procedure is outlawed. The response was a resounding yes.

The Justice Department’s opinion — which was quickly condemned by antiabortion groups — does not change any state or federal laws. It hinges on the department’s interpretation of Section 1461 of the Comstock Act, a law originally passed in 1873 that governs how the Postal Service handles the delivery of contraception and items considered “obscene.”

The opinion notes that the two pills commonly used to perform abortions, mifepristone and misoprostol, also can be used in other ways, such as managing miscarriages or treating gastric ulcers. When ordered by mail, the intended recipient does not have to say how the pills will be used. Because of that, the Justice Department concluded, neither the sender nor postal workers are violating the Comstock Act by sending or delivering abortion pills in a state where the drugs cannot legally be used to terminate pregnancies in certain instances.

The opinion also noted that even states that have recently enacted strict abortion bans continue to allow people to terminate very early-stage pregnancies.

“We note that those sending or delivering mifepristone and misoprostol typically will lack complete knowledge of how the recipients intend to use them and whether that use is unlawful under relevant law,” the opinion states. “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 section 1461 has been violated.”

The Justice Department’s opinion provides clear legal protection to providers who mail mifepristone and misoprostol. But it would not protect a person who receives the pills by mail and uses them to terminate a pregnancy in a state where it is illegal.

Patients need a doctor’s prescription to obtain the pills, though there is a growing covert network that will provide them without a prescription. Still, legal experts said, most doctors would not prescribe and mail the pills to patients in circumstances where abortion is banned.

“This is just another example of the Biden administration twisting the law to push for abortion on demand,” said Katie Glenn, state policy director for the antiabortion advocacy group Susan B. Anthony Pro-Life America. “This is pretty clearly trying to expand protections to people who do know that they are transporting or profiting off of abortion pills.”

The Comstock Act originally was intended to “prevent the mails from being used to corrupt the public morals” and restricted the delivery of birth control or items designed to induce abortions.

Lawrence Gostin, a professor of global health law at Georgetown University, said the wording of the relevant provision of the act has not changed, but federal courts have agreed in rulings over the last few decades that senders must know that the recipient would be using the mailed materials illegally to violate the federal law.

Congress has amended portions of the act, he added, and has not disputed that interpretation.

But the department’s reading of the act still could be challenged in court.

Gostin described the issue of mailing abortion pills as a “live and important debate,” noting a push for conservative states and jurisdictions to impose harsh penalties on people who do so. For example, Louisiana recently enacted a law that effectively made sending abortion pills to someone in the state a crime punishable by up to five years in prison.

Federal law supersedes local law, however, and Gostin said the Justice Department’s opinion should mean that states cannot punish providers — or postal workers — for sending pills that can be used to terminate a pregnancy.

“I regard this as a major expansion of abortion access in the United States,” Gostin said.

The U.S. Postal Service said in a statement that it does not take a stance on abortion medication but has an obligation to deliver any mail that is permissible under federal law. Typically, the postal agency is prohibited from inspecting packages that may contain prescription drugs, which means workers wouldn’t generally know if a package contains abortion pills.

The Justice Department’s “analysis 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,” the statement reads.

Stephanie Krent, a lawyer at the Knight First Amendment Institute at Columbia University, said the Justice Department opinion will shape how the entire executive branch — which includes the Postal Service — interprets and enforces abortion-related laws.

A future presidential administration or attorney general could rescind the opinion. But for now, “these opinions should be considered the law for the executive branch,” Krent said. “It’s binding for the executive branch, so it must be followed.”

This opinion is one of several actions the Justice Department has taken to try to expand abortion access since the Supreme Court overturned Roe. Two other efforts apply in more narrow circumstances.

In August, federal prosecutors successfully convinced a judge to block the portion of an Idaho law that criminalizes performing an abortion on a woman to protect her health. Prosecutors argued that part of Idaho’s restrictive abortion law clashed with a federal law that requires hospitals participating in the federally funded Medicare program to provide medical care, including abortions, when a person’s life or health is at stake.

And in September, the federal law enforcement agency said in an internal legal opinion that it would provide legal defense to Department of Veterans Affairs medical workers who perform abortions to save a patient’s life, protect their health or in instances when the pregnancy is a result of rape or incest — even if performed in a state where the procedure is illegal in those circumstances.

Separately, the Food and Drug Administration on Tuesday made a regulatory change to ease access to medication abortion in states where it is legal, allowing retail pharmacies to dispense the pills. Previously, mifepristone and misoprostol were available only at clinics, directly from doctors or by mail.