Mailing Abortion Pills Is Illegal Under Federal Law, ACLJ Argues to Federal Appeals Court

Major litigation over the legality of abortion pills is pending in the U.S. Court of Appeals for the Fifth Circuit. The ACLJ has just filed an amicus brief – its fourth in the case so far – urging the Fifth Circuit to uphold an injunction against federal approval of abortion pills and against federal loosening of restrictions on abortion pills. We argue at length that under existing federal statutory law, it is a crime to mail abortion pills. (In fact, mailing abortion pills is an act of racketeering that violates the federal RICO statute.)

The case, Alliance for Hippocratic Medicine v. Food and Drug Administration (AHM v. FDA), already has a very full history. Let’s review what has happened so far and what is happening now.

Background and Case History

The case of AHM v. FDA started in federal district court in Texas. As we explained previously, the central issue is whether the federal government was legally out of bounds in approving the use of abortion pills and then progressively abandoning various measures to safeguard mothers who take the pills.

The pill’s manufacturer, the mystery-shrouded Danco Laboratories, intervened in the lawsuit to defend approval of its product.

We filed an amicus brief in the district court highlighting how abortion is often a tool for the exploitation of women rather than their supposed “empowerment.”

In a victory for the protection of women and their children, the district court ruled as illegal both (1) the FDA’s initial approval, in 2000, of the abortion pill for use in the United States, as well as (2) the FDA’s subsequent removal, in 2016 and 2021, of various health safeguards and limits on the administration of the abortion pill. (The abortion “pill” is actually two different drugs, mifepristone and misoprostol, given one after the other to induce an abortion.) The district court temporarily stayed its own judgment to allow time for appeal.

The FDA and Danco immediately proclaimed an emergency and ran to the Fifth Circuit for a stay of the district court ruling. As previously noted, the ACLJ, again filed an amicus brief, opposing a stay and again highlighting, this time for the Fifth Circuit, the use of abortion to exploit women.

The Fifth Circuit, in a mixed ruling, temporarily reinstated the FDA’s approval of the pill but left in place the district court’s invalidation of the FDA’s abandonment of various safety protocols. In other words, the pill would stay legal but be subject to previously long-standing safety rules (called REMS).

Not satisfied with a partial victory, Danco and the FDA then immediately sought further emergency relief from the U.S. Supreme Court. We again filed an amicus brief opposing the requests from Danco and the FDA. We shifted our focus in this brief, addressing squarely the question of whether existing federal law forbade the mailing of abortion pills. (We had tackled this subject in previous letters to the heads of the Department of Justice (DOJ) and the Department of Health and Human Services.) Unfortunately, the Supreme Court granted a complete stay, as requested by Danco and the FDA, with only two Justices – Clarence Thomas and Samuel Alito – recording their dissents. (Justice Alito insightfully noted that the FDA – as we had reported – had already suspended its own drug rules to allow abortion pills to be distributed by mail during the COVID lockdowns. How could there be an emergency requiring Supreme Court intervention, Justice Alito asked, when the FDA could simply do the same thing – temporarily suspend its own rules – in the face of the supposed logistical nightmare of restoring the FDA’s safety protocols?)

Current Status and Latest ACLJ Filing

With a stay in place, the focus now shifts back to the Fifth Circuit, where the FDA and Danco are appealing the district court’s initial preliminary injunction ruling. The Fifth Circuit has expedited the appeal and will hear oral argument on May 17. We have now filed another amicus brief, this time – as with our Supreme Court amicus brief – focusing our fire on a legal opinion from the Biden Justice Department’s Office of Legal Counsel (OLC), an opinion that sought to eviscerate the federal statutory prohibition on mailing abortion drugs and devices.

For those not familiar with the “inside baseball” at the DOJ, the OLC has long been regarded as the most esteemed branch of the DOJ, with a reputation for thorough and honest opinions on the law. In essence, the OLC is the DOJ’s own legal counsel. Therefore, what the OLC says carries a great deal of weight. Sadly, however, the OLC used that weight to lean on the side of abortion pills. As we explain in our amicus brief, after the Supreme Court overturned Roe v. Wade in the Dobbs case:

The Biden Administration immediately and vociferously denounced Dobbs . . . [and] pledged specifically to “protect women’s access to . . . medication abortion,” i.e., abortion pills. . . . The Department of Justice (DOJ), meanwhile, stated that it too “strongly disagree[d]” with Dobbs. . . . The Attorney General noted in particular the DOJ’s desire to “preserve access” to “medication” abortions. . . .The AG further noted the role of the Office of Legal Counsel (OLC) as part of the DOJ’s efforts “to protect and preserve access to reproductive care.” Id. (“Reproductive care” here is a euphemism for interrupting human reproduction by killing the growing child.)

One major obstacle to the federal government’s efforts to ensure access to abortion pills, however, is a federal criminal statute, 18 U.S.C. § 1461. That statute provides, in pertinent part:

Ҥ 1461. Mailing obscene or crime-inciting matter

. . .

Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose;. . .

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. . . .”

Id. (emphasis added). This statute makes it a federal offense to mail abortion drugs (or devices or equipment). The statute does not qualify its prohibition by adding a limiting phrase like “when unlawful under the law of the state to which it is mailed,” or “except when used for [fill in the blank scenario]” or “except where a federal agency approves the drug.” Rather, the prohibition is simple and complete.

In response, the DOJ’s OLC on December 23, 2022, issued a legal opinion . . . purporting to create a major loophole in the statute, a loophole that largely, perhaps completely, would negate the statutory prohibition. As the OLC summarizes (p. 1):

“Section 1461 of title 18 of the U.S. Code does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully. Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.”

In other words, the statute only would apply if the sender of the abortion pills intends the recipient to break the law – that is, some other law aside from § 1461. This rewrites the statute in the service of a pro-abortion agenda.

We read the OLC memo to see if this argument held water. Our conclusion: “[T]he OLC’s contortion of the statute is legally incorrect.” Here – as we set forth in our brief – is why we reached that conclusion.

First, the statute itself, in so many words, flatly bans the mailing of abortion drugs.

Second, the lower court cases interpreting that statute – which the OLC cites to make its argument – do not declare that the mailing must be intended to break state law. Quite the contrary. The cases explain that the federal law in no way hinges on what states say about abortion being illegal or not, and that the best reading of the statute is to ban all mailing of abortion articles except to save the life of the mother or her child. As one federal appeals court put it, the statute “indicates a national policy of discountenancing abortion as inimical to the national life.” Or, as another federal appeals court said, abortions are targeted because they “destroy incipient life.” In short, the lower courts read the statute in harmony with its pro-life purpose – the exact opposite of what the OLC seeks to do.

Third, the OLC is wrong to claim that Congress implicitly (i.e., without saying so) approved of lower court rulings restricting the ban on mailing abortion drugs to cover only mailings with the intent that the pills be used illegally. As we demonstrated at length, those lower court rulings said no such thing; hence, there was no such court rule for Congress to ratify.

Fourth and finally, later documents – documents that are neither laws nor cases – that the OLC references simply cite or rehash the lower court cases already discussed, and thus are of no help to the OLC.

 As we conclude:

The OLC memo attempts to write into § 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.

We hope the Fifth Circuit agrees with our legal analysis and sees the OLC memo for what it apparently is: an attempt to dress up a pro-abortion political agenda in legal camouflage.