More than half of abortions in the United States are done with pills, rather than surgery. So when the Supreme Court struck down the constitutional right to abortion last year, allowing states to regulate and ban abortion however they wanted, an inevitable battle in the ensuing war would involve pharmacists. Mifepristone, which has been FDA-approved for medical abortion since 2000, causes the lining of the uterus to break down, thereby ending the pregnancy. A second drug, misoprostol, which is approved for multiple medical purposes, is subsequently used to evacuate the uterus. As states have banned or restricted abortion, access to these pills has become at the center of contention in the new legal landscape.
One week after the Court’s decision to overturn Roe v. Wade, the US Postal Service sought advice from the Justice Department’s Office of Legal Counsel on an existing federal statute that makes it a felony to mail anything “designed, adapted, or intended to produce abortions, or to any indecent or immoral use”. The statute, which also prohibits the posting of “obscene, lascivious, lascivious, indecent, dirty, or vile” materials, is a holdover from the Comstock Act of 1873, the work of Anthony Comstock, an infamous crusader against the corruption of public morals who he became a special agent for the postal service. The question was whether that statute prohibits sending and delivering abortion medications through the mail. In December, the OLC responded that the statute allows the shipment of abortion pills “when the sender does not intend for the recipient of the drugs to use them illegally,” and that the “mere shipment” of the pills does not establish that intent. . This is because no state has prohibited abortion in all circumstances, and many maintain exceptions for rape or to protect the life of a pregnant person. With abortion legal in those circumstances, a pharmacist could legally ship the pills, even to states where abortion is mostly illegal, because the shipper would not intend the pills to cause illegal abortions.
Earlier this year, the FDA announced that retail pharmacies could become certified to dispense mifepristone, including shipping it to patients, and Walgreens announced that it would apply for certification. In response, nearly two dozen Republican state attorneys general sent letters to Walgreens, CVS and other large pharmacies, alleging that the “plain text” of the statute that prohibits the mailing of any material “to produce abortions,” and not what they called the “OLC” strange interpretation”—should be decisive. The AGs warned that regardless of the opinion of the federal government, they could enforce the statute through civil litigation. And, they noted, many state laws also prohibit the use of the mail to send and receive abortion medications.
The OLC’s interpretation is based on twentieth-century federal cases that refused to interpret the statute literally, as doing so would criminalize shipping items for lawful purposes, just because they can also be used for illegal purposes. Conservatives argue that the statute makes no distinction between legal and illegal abortions, so it prohibits mailing things intended to produce abortions, period.
Danielle Gray, Walgreens’ global legal director, was quick to respond to the red state AGs by clarifying that the company will still seek certification to dispense mifepristone, but does not intend to ship it to people in their states. Gray was a law clerk to Merrick Garland when he was a judge on the D.C. Circuit, and to Justice Stephen Breyer when he was on the Supreme Court, and during the Obama administration she served in the White House counsel’s office and as a clerk. of the cabinet. She is very confident when it comes to legal interpreting.
However, the Walgreens decision has resulted in calls for boycotts, a drop in company shares and pushback from Democratic governors, including Gavin Newsom of California, whose office is pulling out of a $54 million contract. dollars with the company. and “review all relationships between Walgreens and the state.” Yet despite charges of cowardice for “caving in” to Republican threats, a different decision by Walgreens or other companies could subject pharmacists to criminal liability and civil action. Even federal prosecutions for mailing the pills are imaginable if a Republican administration is installed and rejects the Biden OLC opinion. And the federal courts, now packed with Trump appointees, may well highlight the text of the statute, rather than previous judicial interpretations. Not to mention, challenging state AGs could put companies’ state pharmaceutical licenses at risk.
A precursor to the mailing of pills, of course, was their approval by the FDA, which is also now under legal attack, twenty-three years after the fact. Last month, nearly two dozen Republican-led states filed an amicus brief in support of a federal lawsuit in Texas, alleging that the approval of mifepristone for abortion had violated the FDA’s own rules. The regulations, they said, allow the approval of drugs “that have been studied for their safety and efficacy in the treatment of serious or life-threatening conditions,” which they claim do not cover pregnancy. The judge in the case, a pro-life appointee by Trump, can order the agency to revoke its approval of the drug and possibly stop its availability nationwide.
That lawsuit was countered last month by a separate one, in which twelve Democratic states are asking a federal court in Washington state to uphold the FDA’s approval of mifepristone and prevent its removal from the market. The lawsuit also questions the agency’s special restrictions on access to the drug, for example, the requirement that pharmacies be certified to dispense it and, furthermore, that they confirm that the prescription is from a certified provider. If the two federal cases result in conflicting orders, the Supreme Court will soon find itself before another abortion case. So much for federal courts getting out of the “abortion arbitration business,” as Justice Antonin Scalia once said.
But beyond lawsuits and boycotts, the proper target for pro-choice complaints is Congress. He has failed to pass the Women’s Health Protection Act, which would establish a federal legal right to abortion to replace the constitutional right the Court struck down. And he has never repeated the Comstock Law, leaving us in the situation where 19th century sexual morality now shapes the 21st century abortion debate. Still, as the branch constitutionally empowered to make laws for the nation, Congress should, at a minimum, amend the statute to make it clear that medications can be mailed for legal abortions. Unfortunately, that would resolve only one legal interpretive front in the ongoing war of red states against blue states, and federal governments against state governments. ♦
