The US Postal Service can continue to deliver abortion pills to women even in states that have restricted access, the Department of Justice has said.
Health officials hailed the move as a victory for women’s rights following the Supreme Court’s decision to overturn Roe v Wade last summer.
In an opinion sought by the USPS, the DOJ said posting abortion medication did not violate an 1873 law known as the Comstock Act, which was set up to prevent ‘obscene’ or pornographic material being sent through the mail.
The opinion also applies to other delivery companies that could be used to send abortion drugs, including UPS or FedEx.
The availability of mifepristone and misoprostol – prescription medication that can induce an abortion up to 10 weeks into a pregnancy – has increasingly come into question in recent months as states across the US continue to introduce anti-abortion legislation.
Abortion in the 13 states of Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, Tennessee, South Dakota, Texas, West Virginia and Wisconsin has been totally banned, without exceptions for incest or rape
In 21 other states, abortion still remains at risk – with states either partially restricting the procedure or instituting bans that have since been blocked by state courts
Since the landmark Supreme Court decision in July – which ended nearly 50 years of guaranteed federal abortion protections – 13 states have entirely banned abortion, with five more severely restricting access to it.
Lawmakers in seven other states have tried to introduce bans, only to have them blocked by state courts.
Despite widespread closures of abortion clinics across the impacted states, abortion pills – which account for more than half of all pregnancies terminated in the US – have remained available through the mail.
A rule which meant the drugs had to be taken at a clinic was lifted in December 2021 to enable more women to get abortions during the pandemic.
Only in the 16 states of Michigan, Alaska, California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Vermont and Washington is abortion legally protected
The ‘pills by post’ consist of two medications, mifepristone and misoprostol, taken at least 24 hours apart.
Women take mifepristone first to block progesterone, a hormone needed to maintain the pregnancy, from working.
The second, misoprostol, contains a hormone called prostaglandin, which causes the uterus to contract, triggering the abortion.
Federal law does not prohibit the use of mifepristone and misoprostol, and the Food and Drug Administration (FDA) has found them to be safe and effective.
Lawrence Gostin, Director at the WHO’s Center on Global Health Law, said the DOJ’s ruling marked a ‘vital protection for women and doctors’
He wrote on Twitter: ‘Today, Biden delivers for women in America, making access to abortion medication safer, and more accessible.’
In a statement, the Postal Service noted the opinion ‘confirms that the Comstock Act does not require the Postal Service to change our current practice, which has been to consider packages containing mifepristone and misoprostol to be mailable under federal law in the same manner as other prescription drugs.’
The 1873 law in question, passed by Congress under the administration of Ulysses S. Grant, banned anything that could ‘corrupt’ morals from being sent in the mail.
This included contraceptives, pornographic content, sex toys, and any written material about such items.
In the opinion, the DOJ’s Office of Legal Council concluded that the act does not prohibit the mailing of mifepristone or misoprostol if the sender does not know if the drugs will be used illegally.
It said that even in places 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.
OLC chief Christopher Schroeder wrote in the opinion that even in states where taking abortion pills in prohibited, there are no rules stopping a woman traveling to another state where it is not illegal.
Someone sending a woman these drugs cannot know where she will use them, Schroeder said.
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