Two further points on my post two weeks ago on the longstanding, and once again enforceable, federal statutes—18 U.S.C. § 1461 and 18 U.S.C. § 1462—that bar the mailing of abortion drugs:
1. Under the federal RICO (Racketeer Influenced and Corrupt Organizations) Act, acts in violations of these two statutes are included in the list of acts that count as predicate instances of “racketeering activity” under 18 U.S.C. § 1961(1).
Anyone who commits two or more instances of racketeering activity is subject 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). So if a company commits, say, ten unlawful acts of mailing abortion drugs, the owner of the company would face the rest of his life in prison, a fine of $2,500,000, and forfeiture of his interest in the company.
Like the statutes that bar the mailing of abortion drugs, RICO has a five-year statute of limitations for criminal charges. So even if a potential violator were confident that the Biden administration would decline to prosecute him, he would still face the risk that the next administration would do so for acts that occur between now and 2025.
(RICO also allows civil claims, but the prospect of meaningful damages awards for plaintiffs in civil cases is far more tenuous.)
2. In a comment in a Volokh Conspiracy post by Jonathan Adler, law professor David S. Cohen, co-author of a forthcoming article that advises abortion advocates how “to reimagine law, policy, and activism in a post-Roe country,” briskly dismisses section 1461 and section 1462 on the ground that “the circuit courts long ago declared that they only apply to unlawful items.” Cohen contends that “since abortion is legal [??] and the FDA has approved distribution of mifepristone as safe and effective, including by mail, these are lawful activities and items, thus the law, as interpreted by the courts, doesn’t apply.”
Cohen is wrong to contend that “the circuit courts long ago declared that [the predecessor versions of section 1461 and 1462] only apply to unlawful items.” What courts in the 1930s instead held (and/or stated in dicta) is that these laws do not “prevent a proper medical use of drugs or other articles merely because they are capable of illegal uses.” Youngs Rubber Corp. v. C. I. Lee & Co. (2d Cir. 1930). The predecessor version of section 1461 barred mailing “every article or thing designed, adapted, or intended for preventing conception” as well as any promotional material for such items. Applying the reasoning of Youngs Rubber, the Sixth Circuit held in Davis v. United States (1933) that the district court should have admitted evidence that the contraceptive items that the defendants were alleged to have promoted through the mail had “a legitimate medical and surgical use in treatment and prevention of disease.” The district court committed “error in refusing to admit evidence offered by the [defendants] tending to show good faith and absence of unlawful intent.” (Section 1461 and section 1462 do not apply to contraceptives.)
In the context of abortion drugs, what these cases stand for, in short, is the modest proposition that the prosecution must show that the defendant who mailed the drugs intended to do so for the purpose of abortion.
The current regimen of chemical abortion involves two drugs, mifepristone and misoprostol. Unlike mifepristone, misoprostol has uses other than in chemical abortion. Indeed, it has been approved by the FDA only for the prevention and treatment of gastric ulcers in patients taking non-steroidal anti-inflammatory drugs. So simply mailing misoprostol to a doctor who treats ulcer patients would not violate section 1461. But mailing mifepristone and misoprostol, together or in separate shipments, to someone would suffice to establish unlawful intent under section 1461.
In sum, the “long ago” cases that Cohen evidently is referring to are no obstacle to enforcing section 1461 and 1462 against persons who use the U.S. postal service or other common carrier to send drugs that they intend be used for abortion.