Abortion-Pill Shippers Proceed at Their Extreme Peril, and That’s Very Unlikely to Change

As I have explained, the unpersuasive opinion that DOJ’s Office of Legal Counsel concocted on the federal ban on mailing abortion drugs was intended as a big gift to the abortion industry. That ban and its companion ban on sending abortion drugs by common carrier—together often referred to as the Comstock Act—come with steep penalties: a prison sentence of up to five years for a first offence and up to ten years for each additional offense. Further, because violations of those laws count as predicate instances of “racketeering activity” under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), they subject a violator to RICO’s severe criminal penalties, which include for each violation imprisonment for up to twenty years, a fine of $250,000, and forfeiture of any property interest in the criminal enterprise (e.g., ownership interest, including stock options, in a company involved in the racketeering). Plus, the five-year statute of limitations means that a continuing violator will never be safe from prosecution.

The Biden administration appears to have offered the OLC opinion as a stay-out-of-jail card for abortion shippers: Just say that you were relying on the OLC opinion, and no one will be able to prosecute you successfully.

Any comfort that advice might have provided an abortion-pill shipper is shattered by the Fifth Circuit’s opinion yesterday evening that granted the FDA a partial stay of the district-court’s abortion-pill ruling. As I explained in my summary of that ruling, the Fifth Circuit panel stated that the FDA, in relying on the OLC opinion, was arguing that the Comstock Act “does not mean what it says it means.” Contrary to the OLC opinion, the “plain text” of the Comstock Act provisions “does not require that a user of the mails or common interstate carriage intend that an abortion actually occur.” The panel observed that OLC’s “thorough exploration of this topic” consists of nothing more than “a variety of aging out-of-circuit opinions and a single footnote within one Supreme Court dissent [that] favor the [FDA’s] position.”

It’s possible, of course, that the FDA will prevail in the pending litigation. But of the various paths to victory, it seems farfetched that any would result in a final and authoritative ratification of the OLC’s evisceration of the Comstock Act provisions. The favored paths that the FDA has sketched would instead mean that a court would have no occasion to address what those provisions mean.

The Fifth Circuit panel’s discussion of the Comstock Act provisions means that no one can reasonably rely on the OLC opinion as a prediction of how prosecutors and courts will interpret the provisions. No competent attorney would advise a client that the OLC opinion provides any meaningful protection against being prosecuted for sending or receiving abortion drugs and against incurring a sentence of a lifetime in prison and massive financial penalties for doing so.

All of this, of course, is on top of state laws that criminalize distribution of abortion pills.