46 Op. O.L.C. __ (Dec. 23, 2022)
2
lacks the intent that the recipient of the drugs will use them unlawfully.
3
This conclusion is based upon a longstanding judicial construction of the
Comstock Act, which Congress ratified and USPS itself accepted. Federal
law does not prohibit the use of mifepristone and misoprostol. Indeed, the
U.S. Food and Drug Administration (“FDA”) has determined the use of
mifepristone in a regimen with misoprostol to be safe and effective for the
medical termination of early pregnancy.
4
Moreover, there are manifold
ways in which recipients in every state may use these drugs, including to
produce an abortion, without violating state law. Therefore, 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.
5
3
A cognate provision, 18 U.S.C. § 1462, imposes similar abortion-related prohibitions
on using an express company or other common carrier for “carriage” of such items. Our
analysis in this memorandum is applicable to that provision as well.
Sections 1461 and 1462 refer not only to persons who transmit such items by mail or
by common carrier—the senders—but also to individuals who “knowingly cause[]” such
items to be mailed, id. § 1461; “knowingly take[]” any such items from the mail for the
purpose of circulating or disposing of them, id.; or “knowingly take[] or receive[]” such
items from an express company or common carrier, id. § 1462. In the different contexts of
obscenity and child pornography, courts of appeals have held that section 1461 applies to
the act of the recipient who orders the nonmailable material and thereby “causes” it to be
mailed. See, e.g., United States v. Carmack, 910 F.2d 748, 748 (11th Cir. 1990); United
States v. Johnson, 855 F.2d 299, 305–06 (6th Cir. 1988). But see Johnson, 855 F.2d at
307–11 (Merritt, J., dissenting); United States v. Sidelko, 248 F. Supp. 813, 815 (M.D. Pa.
1965). As far as we know, however, these provisions have never been applied to prose-
cute the recipients of abortion- and contraception-related materials. Moreover, the court
of appeals decisions we discuss below construed the relevant provisions of the Comstock
Act to turn on the nature of the sender’s intent, not that of the recipient. Consistent with
this practice, we focus on the sender throughout this memorandum. To the extent a
recipient might be covered, however, our analysis herein would apply and therefore
section 1461 would not prohibit that person from ordering or receiving the drugs if she
does not intend that they be used unlawfully.
4
See Mifeprex (Mifepristone) Tablets, U.S. Food & Drug Admin. 2 (Mar. 2016),
https://www.accessdata.fda.gov/drugsatfda_docs/label/2019/020687s022lbl.pdf (mifepris-
tone label); see also Mifeprex (Mifepristone) Information, U.S. Food & Drug Admin.,
https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers
/mifeprex-mifepristone-information (last updated Dec. 16, 2021).
5
For purposes of this opinion, we assume but do not decide that section 1461 could be
constitutionally applied to the mailing of drugs intended to produce abortions. We also
assume without deciding that state law, as well as federal, is relevant to the application of
section 1461. In addition, we do not address here whether and under what circumstances
the mailing of mifepristone or misoprostol might violate other federal laws. Finally, as