Postal Service can continue to deliver prescription abortion medication, DOJ says

WASHINGTON — The U.S. Postal Service can continue to deliver prescription abortion medication despite a June 2022 Supreme Court ruling that overturned a landmark abortion rights decision, the Justice Department said on Tuesday.

The department’s Office of Legal Counsel said in an opinion sought by USPS that the mailing of mifepristone and misoprostol, commonly used to terminate pregnancies, did not violate an 1873 law known as the Comstock Act.

USPS said in a statement 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.”

Mifepristone is a prescription drug approved by the Food and Drug Administration to induce an abortion up to 10 weeks into a pregnancy. It must be followed by a second drug, misoprostol. Both drugs also have other uses.

A Justice Department spokesman declined to comment on the opinion.

The FDA in December 2021 permanently eased some restrictions on the medications, allowing them to be sent by mail rather than restricting them to in-person dispensing.

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USPS said it took no position on abortion policy at either the federal or state level and noted the Justice Department opinion “specifies that the mailing of those drugs to a particular jurisdiction that may significantly restrict access to an abortion is not a sufficient basis” for the USPS to refuse to deliver them.

USPS said the Justice Department concurred with its “determination that under the doctrine of intergovernmental immunity, any state laws that may apply to the shipment of those prescription drugs cannot be applied to Postal Service employees who are complying with their duties under federal law.”

The Supreme Court’s decision overturning the landmark 1973 Roe v. Wade ruling that recognized women’s constitutional right to abortion put a spotlight on abortion by medication, which accounts for more than half of U.S. abortions.

A Dutch supplier of abortion pills by mail saw demand surge in the wake of the decision, which allowed more than 20 states to begin enforcing new restrictions on abortion.

Restrictions on the abortion medication lifted in 2021 had been in place since the FDA had approved the drug in 2000. They had been lifted temporarily earlier in 2021 due to the Covid-19 pandemic, enabling women to consult healthcare providers by telemedicine and receive the pills by mail.