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 using the medication to terminate a pregnancy, saying that the sender cannot know whether the recipient would use the pills illegally.
While the 21-page opinion, posted online late Tuesday, does not change any state or federal laws, it clearly tells federal government agencies how the Justice Department interprets existing law at a time when many states are attempting to restrict access to abortion pills and crack down on providers who send them by mail.
The U.S. Postal Service had asked the Justice Department to say whether its workers would be liable for delivering pills that could be used for abortion in a state where it is illegal.
The Justice Department’s response was a resounding no, marking Attorney General Merrick Garland’s latest attempt to try to protect access to abortion in at least some instances after the Supreme Court overturned Roe v. Wade this summer. The Supreme Court decision, known as Dobbs vs. Jackson Women’s Health Organization, upended the right to terminate a pregnancy that had been enshrined in federal law for nearly 50 years.
More than a dozen states have since banned or sharply restricted abortion, and more are poised to do so, prompting new efforts to preserve access to medications that can be used to terminate early-stage pregnancies at home.
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, they were available only at clinics, directly from doctors or by mail. Even before the Dobbs decision, medication abortions accounted for more than half of abortions in the United States.
The Justice Department’s opinion hinges on its reading 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 any 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. 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 federal law 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 pregnancies up until a certain number of weeks after conception.
“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 reads. “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 opinion would not protect a person who receives mifepristone and misoprostol in the mail and uses them to terminate a pregnancy in a state where it is illegal.
Lawrence Gostin, a professor of global health law at Georgetown University, 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 people 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.
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 if it disagrees with the agency’s interpretation of the Comstock Act.
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.”