ACLJ Counters Biden DOJ and HHS on Unlawful Distribution of Deadly Abortion Pills

The ACLJ has submitted legal analyses to Attorney General Merrick Garland and HHS Secretary Xavier Becerra, arguing that the federal statutory ban on mailing abortion drugs means what it says and that an effort by the Biden Administration’s Department of Justice (DOJ) to negate that law rests on faulty premises.

In the first of the well-known Star Wars movies, the good guys confront – and destroy – the Death Star. But that is not the end of the story: The deadly Empire strikes back with more attacks and even starts building a new Death Star.

The Supreme Court’s 1973 decision in Roe v. Wade, as scholar Thomas Jipping has explained, created “a type of Death Star, traveling through our legal and cultural universe, destroying everything in its path.” The Roe decision declared that the federal Constitution protected a “right” to kill tiny human beings before birth, with enormous and lethal consequences. Thankfully, the Supreme Court, in last year’s ruling in Dobbs v. Jackson Women’s Health Organization, blew up that Death Star. The Dobbs Court held that “the Constitution does not confer a right to abortion.”

But, as with the Star Wars movies, the Abortion Empire has struck back, and with ferocity. (And efforts are already afoot to construct a new Death Star, i.e., a new federal abortion right.) A key part of that counterattack has been the Biden Administration, which immediately announced its intention to “protect . . . access to” abortion, particularly through abortion drugs.

As we point out in our letters to AG Garland and Sec. Becerra, however, there exists a “major obstacle for the federal government’s efforts to ensure access to abortion pills,” namely “a federal criminal statute, 18 U.S.C. § 1461,” which “makes it a federal offense to mail abortion drugs (or devices or equipment).”

Perhaps unsurprisingly, the Biden DOJ sought a way around this obstacle. In a statement, AG Garland had already declared that the DOJ “strongly disagrees” with Dobbs. The statement, issued moments after the Dobbs ruling, expressly noted that the DOJ’s Office of Legal Counsel (OLC) had a role in combating limits on abortion. In a clear giveaway, the statement provides the road map for making abortion drugs readily available:

And we stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care [abortion]. In particular, the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.

Plainly, the DOJ planned to prioritize access to abortion drugs. And that is exactly what the OLC did in an opinion released on December 23, 2022. That opinion claims that, despite its clear language, the federal statutory ban on mailing abortion drugs only applies if the person or entity mailing the drugs intends that the person receiving the drugs will use them unlawfully. In effect, the OLC sought to gut the federal statute by creating massive loopholes.

That’s when the ACLJ stepped in. We prepared an 11-page analysis that painstakingly dissects the OLC’s arguments and shows them to be empty. We recommend reading the full analysis to better understand the OLC’s sleight-of-hand. But here is a brief summary:

1. The federal statute itself does not contain any “unlawfulness” element. If it did, the federal law would be completely at the mercy of state law and would be useless as to any state that decided to protect, rather than prohibit, killing human beings in the womb by pills.
2. The early 20th-century federal appeals court cases interpreting the federal statute (which the OLC relies upon) do not create an “unlawfulness” element. Instead, they read the statute as reflecting “a national policy of discountenancing abortion as inimical to the national life,” and as therefore incorporating an exception for procedures done to save the life of the mother or the life of the child – “an operation to save life” as opposed to “abortions for destroying life.” While these courts sometimes use the term “unlawful” as interchangeable with “immoral” or “for condemned purposes,” that is presumably because at the time of these decisions – 1915–1944, well before Roe and well before the legislative loosening of some state abortion laws – abortions were considered both illegal and immoral unless done to save the life of the mother or baby.
3. Since there was no lower court consensus that “unlawfulness” was an element, the amendment and readoption by Congress of the federal statute could not possibly have “ratified” that nonexistent element. And, in fact, an effort in Congress to add an “unlawfulness” element failed.
4. Later statements by the United States Postal Service simply repeat the interpretation of the lower court cases already cited, and thus add no grounds for inventing an “unlawfulness” element.

As we conclude:

The OLC memo attempts to write into the §1461 an “unlawfulness” element that would sharply limit the scope of that statute as to the mailing of abortion drugs. As demonstrated above, the OLC’s memo is entirely unpersuasive in its efforts to derive such an element from the text, history, or judicial interpretation of that statute and its predecessors.

In sum, it remains illegal under federal law – indeed, it is a racketeering offense under RICO – to mail abortion drugs or devices.