The Postal Service Can Continue to Deliver Abortion Pills Anywhere in America, DoJ Says
The Biden administration confirms USPS can continue its existing practice without fear of retribution for employees.
The U.S. Postal Service can continue to deliver abortion pills through the mail regardless of their destination and the laws in that state, the Justice Department said in a new opinion.
USPS employees cannot be held criminally liable for conducting their duties by delivering mail that contains medication that can induce abortions, the Office of Legal Counsel said, and the mailing agency is under no obligation to remove such deliveries from the mail stream. The Postal Service previously said in the wake of Roe v. Wade’s overturning it would make no efforts to prevent mailers from sending such pills to any state, but it subsequently requested an Office of Legal Counsel opinion to ensure it was on firm legal footing.
Advocates have increasingly pointed to the prescription drugs mifepristone and misoprostol—which, when taken in tandem, can safely terminate pregnancies—to help boost access to abortion services for those in states with limited or no other options. The Food and Drug Administration eased the delivery of the pills in December when it permanently lifted a requirement that they be administered in person. Medication abortion accounts for 54% of abortions in the United States, according to the Guttmacher Institute, a reproductive health organization.
The Office of Legal Counsel’s review centered around the Comstock Act, a late-19th century law that sought to restrict the mailings of any sex-related materials, including those used for contraception or abortion. The law specifically stated that “any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion” could not be delivered through “any post office or by any letter carrier.” In its opinion, OLC cited many examples—all pre-dating Roe—in which courts took a more narrow view of the law. Mailings were only illegal if the sender was knowingly violating the law, various federal courts repeatedly found. Congress has repeatedly tweaked the Comstock Act to reflect that understanding, the Office of Legal Counsel said.
Despite many states adopting laws severely restricting legal abortion, there are still lawful uses for mifepristone and misoprostol in every state, said Christopher Schroder, assistant attorney general and author of the opinion. That makes it impossible for USPS to knowingly make an unlawful delivery of abortion pills.
“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,” Schroder said. “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” the Comstock Act was violated.
The Postal Service said in a statement that Justice confirmed it can continue its existing practice.
“The OLC’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,” USPS said. It added that under the “doctrine of intergovernmental immunity,” its employees who are “complying with their duties under federal law” could not be in violation of state laws.
Attorney General Merrick Garland previously stated any federal employees who carry out their duties by providing services related to abortion would be protected from liability.
The Office of Legal Counsel stressed that even if postal employees know a package contains abortion pills, they will not know the intent of the sender. It cited several examples in which mifepristone and misoprostol could be lawful, even in situations in which they go to states that severely restrict abortions. Some states with anti-abortion laws still allow for abortions up to a certain number of weeks after conception, meaning the medication would still be legal. In all states, the Office of Legal Counsel noted, abortion is still lawful to protect the life of the woman, and some states have exceptions for rape or incest.
Some states prohibit assisted abortions but allow for them when self-administered. Even if someone receives the medication in a state and circumstance in which taking the pills would be unlawful, they could relocate to another state and lawfully induce an abortion. Certain federal agencies, such as the Veterans Affairs Department, have said they will provide abortion services in limited circumstances despite any state law. There are also several non-abortion uses for the medications.
Due to all of those scenarios, the Office of Legal Counsel said it would be impossible for USPS to determine whether the delivery of the pills is unlawful.
OLC did not weigh in on individual states’ abortion laws, but Garland has said states cannot ban mifepristone and misoprostol "based on disagreement with the FDA’s expert judgment about its safety and efficacy.” USPS told Government Executive in June it was up to mailers to ensure their mailings were in compliance with all relevant federal and state laws.
Shortly after the Supreme Court overturned Roe, the White House vowed specifically to leverage USPS to make abortion pills more widely available.
“In the face of threats from state officials saying they will try to ban or severely restrict access to medication for reproductive health care, the president directed the secretary of Health and Human Services to identify all ways to ensure that mifepristone is as widely accessible as possible in light of the FDA’s determination that the drug is safe and effective—including when prescribed through telehealth and sent by mail,” the White House said.