The U.S. Department of Justice’s Office of Legal Counsel recently released an advisory opinion[i] regarding Section 1461 of title 18 of the U.S. Code. In it, they write the “Comstock Act”[ii] does not prohibit the mailing of certain medications used to perform abortions where the sender does not believe the medications will be used unlawfully. This opinion comes in the wake of the U.S. Food and Drug Administration (FDA) allowing pharmacies to fill prescriptions of Mifepristone, one of the medications used to induce abortion, providing it is prescribed by a certified health care provider.[iii]

Since the United States Supreme Court’s decision to overturn Roe v. Wade[iv] in Dobbs v. Jackson Women’s Health Org.,[v] there have been questions from health care providers, governmental agencies, and individuals on what is permissible when it comes to abortion, in general, in various states.  On July 1, 2022, the Office of Legal Counsel received a request from Thomas J. Marshall, the General Counsel for the United States Postal Service (USPS), asking for an interpretation of the Comstock Act as it applies to sending the medications Mifepristone and Misoprostol through the mail. This formal request led to the recent guidance from the Office of Legal Counsel after careful review of the judicial and legislative history of the Comstock Act.

The Office of Legal Counsel listed a multitude of reasons why sending and delivering the medications would not violate the Comstock Act, including:

• In most states, abortion continues to be lawful until the 20-week mark. Medications sent in that time period are not likely intended to be used unlawfully.

• In states with more restrictive abortion laws, most still allow abortion up to a certain number of weeks, and use of the abortion-inducing medication to terminate pregnancy is not unlawful during that period.

• No state, as of this point, has enacted an abortion law that prohibits abortions that are necessary to preserve the life of the woman.

• Most state abortion restrictions have exceptions for cases of rape, incest, the health of the woman, or severe fetal anomalies. Using abortion-inducing medication in these instances would not be unlawful.

• Some states that have more restrictive abortion laws do not make it unlawful for the woman to abort the pregnancy herself.

• Individuals are allowed to travel to another state that has not prohibited the use of abortion-inducing medication.

• In some circumstances, federal agencies may provide abortion services even if contrary to state law.

• Mifepristone and Misoprostol, while mainly used to induce abortions, have other medical uses. Use of the medications for these other purposes is not, on its face, unlawful.

The key takeaway from the Legal Counsel’s opinion is there is a scenario where the medication could be sent anywhere in the United States and be used lawfully. There are enough plausible scenarios where the medication can be used in a lawful manner that the sender or the deliverer will not have the requisite intent that the medications will be used unlawfully. Consequently, USPS and the sender are still acting legally when they send and deliver the medication to the recipient.

If you have any questions about the opinion from the Office of Legal Counsel or any other questions about recent regulatory developments pertaining to abortion, please contact your Dinsmore attorney.