Postal Service is clear to deliver abortion drugs, DOJ says

The U.S. Postal Service is legally allowed to deliver prescription abortion drugs even in states that have curtailed access to abortion, the Justice Department said.

A legal opinion from the agency’s Office of Legal Counsel (OLC) found that mailing mifepristone or misoprostol does not violate the Comstock Act, a nearly 150-year-old law originally written to stop anything that could “corrupt” morals from being sent in the mail, if the sender does not know if the drugs will be used illegally.

The Justice Department’s opinion was requested by the Postal Service in the wake of the Supreme Court’s June decision overturning Roe v. Wade, a ruling that ended nearly 50 years of guaranteed federal abortion protections. 

Republican-led states have been moving to limit or even completely ban access to the drugs, and advocates have been concerned the Supreme Court’s decision will embolden even more states to crack down. There has been a growing effort to circumvent the laws by mailing the drugs, often from overseas, directly to people seeking them.

Mifepristone is a prescription drug approved by the Food and Drug Administration (FDA) to induce an abortion up to 10 weeks into a pregnancy. It must be followed by a second drug, misoprostol. 

Federal law does not prohibit the use of mifepristone and misoprostol, and the FDA has found them to be safe and effective for terminating early pregnancy.

“There are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law,” OLC chief Christopher Schroeder wrote in the opinion. “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.”

The opinion also applies to other carriers that could be used to send abortion drugs, like UPS or FedEx. 

In the opinion, the OLC wrote that even in a jurisdiction with restrictive abortion laws, women can still lawfully use mifepristone and misoprostol because there are no prohibitions on abortions necessary to preserve the life of the woman. 

Some state abortion restrictions also include exceptions for cases of rape or incest, to protect the health of the pregnant person or where there are severe fetal anomalies.

Even if a state prohibits a pregnant person from ingesting mifepristone or misoprostol for the purpose of inducing an abortion, that person is free to travel to another state where it is not prohibited. Someone sending a woman these drugs is unlikely to know where she will use them, Schroeder wrote, so it does not violate the law.

The Justice Department memo was one of two actions taken by the Biden administration Tuesday to expand access to abortion drugs.

An FDA rule change will allow U.S. retail pharmacies for the first time to offer abortion pills directly to patients with a prescription, suspending a long-standing requirement that the pills be dispensed in person by doctors or clinics.