By hook or by crook, the Biden administration is determined to undermine or circumvent state laws restricting abortion. That’s the broader objective that explains the Office of Legal Counsel’s unpersuasive opinion that aims to eviscerate the federal ban on mailing abortion drugs.
Indeed, OLC appears to be trying to offer its opinion as a stay-out-of-jail card for abortion-drug shippers. Never mind, the Biden administration is trying to persuade them, that federal law imposes a prison sentence of up to five years for a first offence and up to ten years for each additional offense. Never mind that violations count as predicate instances of “racketeering activity” under the federal Racketeer Influenced and Corrupt Organizations Act (RICO) and thus subject the violator to RICO’s severe criminal penalties, which include for each violation imprisonment for up to twenty years, a fine of $250,000, and forfeiture of any property interest in the criminal enterprise (e.g., ownership interest in a company involved in the racketeering). Never mind that the five-year statute of limitations would allow a subsequent administration to prosecute offenses that occur now. Just say that you were relying on OLC’s advice and you’ll be okay.
That broader purpose explains why OLC goes beyond simply giving its (bad) advice to the United States Postal Service as to when abortion drugs are mailable under 18 U.S.C. § 1461—a matter that affects the Postal Service’s operations. OLC offers the Postal Service its gratuitous advice that the same analysis applies to 18 U.S.C. § 1462, a provision that governs sending abortion drugs by common carrier. It likewise asserts that the same analysis applies to those who receive abortion drugs by U.S. mail or common carrier. It is difficult to see how answering the Postal Service’s inquiry called for OLC to address those matters.
In short, OLC, in the guise of providing advice to the Postal Service, is trying to give a big gift to the abortion industry.
It is far from clear that the OLC opinion would actually accord protection from federal prosecution to those who send or receive abortion drugs by U.S. mail or common carrier. Indeed, the fact (or, if you wish, appearance) that OLC has contrived the opinion to try to achieve that purpose ought to make it less likely that a court would deem it to have succeeding in doing so. I hope that a federal court will soon have the opportunity to weigh in on what section 1461 and section 1462 actually mean.
I will also note that a coalition of 20 state attorneys general has informed CVS and Walgreens both that they (the attorneys general) believe that the OLC opinion “fails to stand up even to the slightest amount of scrutiny” and that “the laws of many states also prohibit using the mail to send or receive abortion drugs.”
What all of this means is that it would be gross folly for any attorney to advise anyone that the OLC opinion guarantees protection against being prosecuted for sending or receiving abortion drugs.