The federal government is taking actions in the wake of the U.S. Supreme Court’s decision last June in Dobbs v. Jackson Women’s Health Organization to make chemical abortions more widely available, even in pro-life states that have taken steps to limit or prohibit abortion.
Recent actions by the U.S. Food and Drug Administration (FDA) as well as the U.S. Department of Justice (DOJ) will expand the availability of the abortion drugs mifepristone and misoprostol and ensure that companies sending the drugs through the mail will not blocked by an 1873 law making it illegal for the U.S. Postal Service to deliver anything “calculated to lead another to use or apply it for producing abortion.”
Previously, the FDA only allowed abortion pills to be dispensed by clinics, medical offices, and hospitals under the direct supervision of a licensed physician. On January 3, 2023, the FDA modified what it calls its “Mifepristone REMS Program” to expand the availability of mifepristone to retail pharmacies like CVS and Walgreens.
Mifepristone is the first in a two-pill chemical abortion regimen. Mifepristone blocks a hormone necessary for pregnancy development and is authorized by the FDA to be taken in the first 10 weeks of pregnancy.
The second drug in the chemical abortion regimen is misoprostol, which is taken 24 to 48 hours after mifepristone. It causes contractions that expel the baby from the womb.
States that prohibit abortion would still be able to prohibit pharmacies from dispensing the drug, but the increased availability in other states increases the prospect of more babies dying, as well as increasing the danger to women’s health.
SBA Pro-Life America advocates for life and for laws prohibiting abortion. The organization issued a press release denouncing the FDA’s latest action.
“The Biden administration has once again proved that it values abortion industry profits over women’s safety and unborn children’s lives. Abortion activists want to turn every post office and pharmacy into an abortion business, and the Biden FDA is a willing participant – even while studies show emergency rooms are being flooded with women suffering from serious, life-threatening complications caused by abortion drugs,” said SBA Pro-Life America President Marjorie Dannenfelser.
“Chemical abortion pills can cause dangerous complications including hemorrhage and infection, and complications are more likely when pills are dispensed without medical screening or follow-up care,” she added.
According to SBA Pro-Life America, the complications of chemical abortion have been quantified in study after study:
“Multiple peer-reviewed studies confirm that women are at risk of severe side effects after taking chemical abortion pills, including hemorrhaging, the need for follow-up surgery, and even death. Studies have found that chemical abortion has four times the complication rate of surgical abortion, and these risks only increase with advanced pregnancy and lack of medical supervision. Peer-reviewed research from Charlotte Lozier Institute has also found that after a chemical abortion there is a 53% greater risk for an ER visit for abortion complications than after a surgical abortion.”
In addition to the FDA’s action, the DOJ has taken steps of its own to increase the availability of chemical abortions by, in effect, allowing the abortion pills to be transported through the U.S. mail despite a federal law prohibiting it.
Responding to a request from the General Counsel for the U.S. Postal Service, the DOJ issued a legal opinion dated December 23, 2022, concluding that Section 1461 of the Comstock Act of 1873, which declares nonmailable “every article or thing designed, adapted, or intended for producing abortion…” does not apply to mail orders of mifepristone.
The law also makes it a felony to “knowingly use the mails for the mailing, carriage in the mails, or delivery” of any such things, so the DOJ’s legal opinion effectively lets producers of the abortion pill totally off the hook for sending it through the mail.
But why does the federal law not apply? The language seems to be clear enough, and everyone knows that mifepristone is used for abortion. So why did the DOJ decide otherwise?
Sadly, the DOJ found a loophole in the Comstock Act, which has been amended four times since 1873. The DOJ concluded that Section 1461 “does not prohibit the mailing of articles that can be used to produce abortion, including mifepristone and misoprostol, where the sender lacks the intent that those items should be used unlawfully” (emphasis added).
Read those italicized words again. “Where the sender lacks the intent that those items should be used unlawfully.”
The DOJ reasons that if the seller of the abortion pill doesn’t ask what the drugs will be used for, and the buyer doesn’t say, then there’s no violation of the Comstock Act.
Why is that, you ask? Isn’t it obvious what the drugs are used for?
Well, the DOJ lists several possible circumstances where the drugs might be legal, even in states where abortion is prohibited to some – or even a substantial – degree. For example, a state might only prohibit abortion after a certain number of weeks. Or, a state may even prohibit abortion entirely, except in cases where the woman’s life is at risk, or in the cases of rape or incest. Or fetal abnormality. In those exceptional cases, the DOJ notes, the abortion drug could legally be used.
It comes down to, “How’s the seller to know what the abortion pill’s intended use is unless the buyer informs it?”
Thus, the DOJ concludes, the abortion-pill-by-mail’s legality hinges on a form of “don’t ask, don’t tell” policy between buyer and seller – there can be no “intent” to mail an unlawful item if the pill producer doesn’t “know” it will be used in an unlawful manner.
If that strikes you as outrageous, we’d agree.
The DOJ letter concludes its “analysis” with this:
“And in light of the many lawful uses of mifepristone and misoprostol, the fact that these drugs are being mailed to a jurisdiction that significantly restricts abortion is not a sufficient basis for concluding that the mailing violates section 1461.”
So, the fight to protect preborn babies and their mothers will continue at the state level despite the best efforts of the federal government to intentionally frustrate them. As Christians who believe that every life is created in God’s image, we will never cease to advocate for babies and their mothers.
It is a just cause.