The Department of Justice has given the U.S. Postal Service legal authorization to ship two drugs that can be used for abortions.
The move, detailed in a memo posted online Tuesday, extends a lifeline to some abortion seekers after the Supreme Court overturned federal abortion rights last year and Republicans in several states enacted arcane measures outlawing the procedure.
The Postal Service had asked the DOJ to determine whether it would be violating the law by delivering mifepristone and misoprostol, two drugs commonly — but not exclusively — used for abortions. Specifically, the agency wanted to know whether making the deliveries violates a 19th-century law known as the Comstock Act, which bans mailing any “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, or for any indecent or immoral purpose.”
The newly released memo states the DOJ’s view that mifepristone and misoprostol can be legally delivered because the drugs have multiple uses and because the Postal Service doesn’t know whether recipients intend to use them to terminate a pregnancy.
“Section 1461 of title 18 of the U.S. Code does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully,” the memo says, referring to the Comstock Act. “Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, 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.”
Last year, the Biden administration made permanent a pandemic-era rule that allowed people seeking abortion pills to receive them in the mail.
The DOJ’s memo suggests that even in states with the strictest anti-abortion measures, the Postal Service has jurisdiction to deliver mifepristone and misoprostol. That’s good news, though not an adequate replacement for the devastating loss of federal abortion rights.
And it arrived the same day the Food and Drug Administration gave retail pharmacies in most states the freedom to distribute abortion pills if the pharmacies receive certification.
Still, even with how vital these medications are for abortion seekers, Republicans have taken steps to restrict who can distribute them and when a person should be allowed to take them.
As the Guttmacher Institute notes, courts have upheld the right to medication abortions, but some state legislators have defied reputable health experts in requiring that the medications be distributed only by physicians, rather than, say, pharmacy techs.
The DOJ’s memo also should raise concerns about the coming age of right-wing, anti-abortion surveillance. The department said the Postal Service’s not knowing why someone wants mifepristone or misoprostol means the drugs can be sent freely. I expect right-wingers in states with anti-abortion measures will deploy troubling tactics — like accessing private messages — to try to prove someone was seeking the drugs for an “unauthorized” abortion.