Published February 10, 2023
I’m pleased to report that I have just filed an amicus brief on behalf of the Ethics and Public Policy Center (where I work) in the pending challenge that the Alliance for Hippocratic Medicine has brought against the FDA’s approval of the abortion pill.
As I have spelled out before, federal criminal statutes broadly prohibit sending abortion drugs by U.S. mail or common carrier. The FDA claims that these criminal statutes have no bearing on its authority to direct manufacturers of mifepristone to distribute that drug by mail or by common carrier to doctors who prescribe mifepristone for abortion and to pharmacies that dispense it for that purpose. EPPC’s amicus brief rebuts the FDA’s claim and the recent Office of Legal Counsel opinion on which the FDA relies. I draw heavily on my posts that have exposed the deep flaws in the OLC’s contrived opinion.
In repeatedly referring to the provisions as the Comstock Act, OLC seems eager to draw on the notoriety of their draftsman Anthony Comstock. But there is a striking disconnect between Comstock’s reputation for severity and the lax (if not empty) meaning that OLC would assign to sections 1461 and 1462. Indeed, under OLC’s intent test, even at its inception, the original Comstock Act could rarely if ever have been enforced against anyone who mailed abortion drugs. To apply OLC’s own statement: In light of the universal exclusion of life-threatening conditions from state abortion laws, anyone who mailed abortion drugs in 1873 “typically [would] lack complete knowledge of how the recipients intend to use them and whether that use [would be] unlawful under relevant law.” Plus, for the reasons set forth in the preceding paragraph, it would be rare that a sender in 1873 would ever have an intent that the drugs be used unlawfully. Further, under OLC’s test, if a state in 1873 had adopted broadly permissive abortion laws, the supposedly draconian Comstock Act would have allowed a sender to mail drugs to that state with the specific intent that they be used for nonlifesaving abortions.
The Biden administration is hoping that the OLC opinion will operate as a stay-out-of-jail card for abortion drug-shippers. That hope will be devastated if the federal district court grants the Alliance for Hippocratic Medicine’s motion for a preliminary injunction ordering the FDA to withdraw its approval of mifepristone. (Indeed, any judicial disagreement with the OLC opinion will make clear that it would be gross folly for any attorney to advise anyone that the OLC opinion guarantees protection against being prosecuted for sending or receiving abortion drugs.)
Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.