The Biden administration keeps coming up with new tactics to keep abortions happening.
The latest is Justice Department advice to the U.S. Postal Service that a federal law prohibiting using the mail to send abortion drugs doesn’t mean what it says.
By overruling its decisions inventing a constitutional right to abortion, the Supreme Court held in June in Dobbs v. Jackson Women’s Health Organization that “the authority to regulate abortion must be returned to the people and their elected representatives.”
With the constitutional blockade lifted, legislatures are confronting the reality that a majority of abortions now result from drugs, rather than surgery.
A long-standing federal law, however, prohibits using the mail to send abortion drugs. The law, first enacted in 1873 and now appearing as 18 U.S.C. §1461, has two parts.
First, it prohibits the U.S. Postal Service from conveying or delivering “nonmailable matter,” including anything “designed, adapted, or intended for producing abortion.” The second part prohibits anyone from “knowingly us[ing] the mails for mailing … or delivery of anything declared … to be nonmailable.”
Mifepristone and misoprostol are clearly “designed, adapted, or intended for producing abortion.” The Food and Drug Administration itself says that these drugs “are approved … to end an intrauterine pregnancy through [10] weeks gestation.” That is the only purpose for which the drugs may be marketed.
Legislative clarity, however, is no obstacle to a Justice Department with a political agenda.
In July, one week after the Dobbs decision, the Postal Service asked for advice from the Justice Department’s Office of Legal Counsel about whether §1461 prohibits mailing mifepristone or misoprostol.
On Dec. 23, the Office of Legal Counsel responded that the law “does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”
Congress could have enacted a statute saying that, but it didn’t.
The original law is often referred to as the Comstock Act, named after anti-vice crusader Anthony Comstock, who lobbied for it and spent more than 40 years enforcing is as a Postal Service special agent. The formal title of the law is instructive: “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.”
Proving (beyond a reasonable doubt, no less, since this is a criminal statute) a sender’s specific intent regarding how a particular recipient might use the matter being sent would be difficult, if not impossible, in most cases.
In other words, the Office of Legal Counsel wants us to believe that, though professing the goal of suppressing trade in things designed for producing abortion, Congress enacted a law that would be virtually unenforceable.
The opinion is seriously flawed in other ways.
First, as simply reading the statute confirms, §1461’s prohibitions on the Postal Service and individuals who would use it focus objectively on the “article or thing” being sent. They say nothing about senders’ subjective intent or recipients’ speculated uses.
Second, not only is the Office of Legal Counsel’s “intention for unlawful use” requirement simply missing from §1461, but it appears that Congress may have intended it that way. As originally enacted, the law’s first section applied to federally controlled jurisdictions like the District of Columbia, prohibiting the possession of “any drug or medicine, or any article whatever, for… causing unlawful abortion.”
The second section, which became the §1461 that we see today, prohibited using the mail for “any article or thing designed or intended for … procuring of abortion.”
One of the standard rules for construing statutes is that, as the Supreme Court has described it, “where Congress includes particular language in one section of a statute but omits it in another … it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
In 1948, when codifying the original statute in the criminal code, Congress dropped the first section, kept the second, but never added any “unlawful” limitation. All of this indicates that the statute Congress actually enacted means the opposite of the fictional one the Office of Legal Counsel is promoting.
Third, its opinion claims that its version of §1461 mirrors federal courts’ “consensus interpretation” of the original statute.
It doesn’t.
The opinion, for example, cites the 1915 decision by the U.S. Court of Appeals for the 7th Circuit in Bours v. United States. Today, state law determines whether using abortion drugs is lawful. Bours, however, held that “it is immaterial what the local statutory definition of abortion is, what acts of abortion are included, or what excluded.”
Far from supporting the Office of Legal Counsel’s interpretation, therefore, Bours appears to contradict it.
Far from offering a reasonable interpretation of §1461, the Office of Legal Counsel attempts to construct a fictional statute that would not interfere with the Biden administration’s pro-abortion agenda.
This effort not only fails on its own merits, but shows how thoroughly politicized the Biden Justice Department has become.
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