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U.S. Postal Service Can Keep Delivering Prescription Abortion Medication, Says DOJ

The USPS said, however, that they haven't taken a stance on abortion at either the federal or state level.

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Photo: Nati Harnik

On Tuesday, the Justice Department declared that the U.S. Postal Service can keep delivering prescription abortion medication. This comes as a surprise since in June 2022 the Supreme Court overturned Roe v. Wade, which was a direct attack on abortion rights.

In an opinion sought by the United States Postal Service, the department’s Office of Legal Counsel stated that the mailing of misoprostol and mifepristone—which are often used to terminate pregnancies—did not violate the Comstock Act (a law founded in 1873). A portion of it stated:

“We conclude that [the statute] does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully. There are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law. Therefore, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.”

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In a statement, the United States Postal Service said 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 must be taken in combination with misoprostol in order to terminate a pregnancy up to 10 weeks into it. It is also FDA approved. USPS has insisted it took no stances when it comes to abortion policy at either the federal or state level.

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USPS also stated that the Justice Department aligned 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.”

In 2021, restrictions on the abortion medication were lifted, even though they had been in place for 20 years. This was due to Covid-19, which allowed women to have appointments with healthcare providers virtually as well as receive the pills by mail. More than half of abortions in the U.S. are abortion by medication.