1. For those readers for whom my post yesterday was too deep into the weeds of case law and committee reports, I’d like to distill the big picture:
There is no meaningful support for OLC’s claim that the federal ban on mailing abortion drugs (section 1461) does not apply when “the sender lacks the intent that the recipient of the drugs will use them unlawfully.”
OLC claims that there was a “well-established, consensus interpretation” among the federal appellate courts on such an exception by the middle of the 20th century and that Congress ratified the supposed consensus. But far from there being such a consensus, the cases that OLC cites do not remotely support its position.
In the single case (Bours) that actually involved abortion, the Seventh Circuit discerned in the Comstock Act “a national policy of discountenancing abortion as inimical to the national life,” and it declared state laws to be “immaterial” to how the Act applies. The case (One Package) that supports a limitation similar to OLC’s in the context of contraception does so on a rationale (what the Congress of 1873 “would have denounced as immoral if it had understood all the conditions”) that does not remotely extend to abortion.
Congress could not have ratified a supposed “consensus interpretation” that never existed. And OLC’s ratification claim is rife with other problems, including the fact that Congress in the 1970s unsuccessfully tried to modify section 1461 to say what OLC claims it means.
2. A much more sensible reading of section 1461, and one that amply addresses the concerns that courts have raised about its—or, rather, its predecessors’—overbreadth is that it does not bar use of the postal service for drugs (or other items) when those drugs are being mailed for a purpose other than abortion. So, for example, misoprostol, which, as OLC notes, “is commonly prescribed for the prevention and treatment of gastric ulcers,” could be mailed for that use. (It would make far more sense, I think, to have “legitimate use” as an affirmative defense than to have “illegitimate use” as an element of the offense.)
3. Under OLC’s misreading, if a state, say, had legalized abortion in 1880, the Comstock Act would have allowed mailing of abortion drugs and devices to buyers in that state. That proposition strikes me as absurd, and it contradicts what the Seventh Circuit saw as Congress’s “national policy of discountenancing abortion as inimical to the national life.”
4. OLC’s exception would render section 1461 a nullity, even for mailings to states in which abortion is broadly unlawful. For the Biden administration, this is of course a feature, not a bug.
Even beyond the “illustrative uses for mifepristone and misoprostol” that OLC maintains would allow mailings, there is the absurdity that it would be rare that the sender of abortion drugs would ever have “the intent that the recipient of the drugs will use them unlawfully.” Your typical shipper of abortion drugs won’t give a damn whether the recipient uses them for an unlawful abortion or flushes them down the toilet or feeds them to a pet. Even ideological shippers (e.g., abortion activists) would presumably intend at most only that the recipient have the ability to use the drugs unlawfully if she chooses to go ahead with the abortion, not that she actually use them. What possible sense does such a stringent intent test make?