In the aftermath of the Dobbs ruling, I highlighted a longstanding federal statute, 18 U.S.C. § 1461, that, by its terms, bars use of the United States postal service for abortion drugs:
Every article or thing designed, adapted, or intended for producing abortion … 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 …
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.
Section 1461 imposes a prison sentence of up to five years for a first offense and up to ten years for each additional offense. In addition, violations of section 1461 count as predicate instances of “racketeering activity” under the federal Racketeer Influenced and Corrupt Organizations Act (RICO) and thus subject the 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 in a company involved in the racketeering). The statute of limitations for both section 1461 and RICO is five years. (A similar statute applies to use of Federal Express and other interstate carriers.)
The Department of Justice’s Office of Legal Counsel (in which I once served) has recently issued an opinion advising the United States Postal Service that section 1461 doesn’t mean what it says. In Part I of its opinion, OLC argues that section 1461 “does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol [two prescription drugs commonly used to produce abortion] where the sender lacks the intent that the recipient of the drugs will use them unlawfully.” (Emphasis added.) In Part II, OLC proceeds to spell out what it regards as “the many circumstances in which a sender of these drugs typically will lack an intent that they be used unlawfully.”
On Part I: The legal issue is a complicated one, and I am not going to maintain that it is open and shut that OLC gets it wrong. But those who are considering mailing abortion drugs should not have confidence that OLC gets it right, and they would be fools to rely on it. OLC’s advice to the postal service is only that—advice to the postal service. It does not preclude a future presidential administration from adopting a different reading of section 1461; it does not bar federal prosecutors from seeking convictions for violations within the five-year statute-of-limitations period; and it of course does not reveal how the courts will rule on this issue.
I sketched in a previous post (point 2 here) that what the cases OLC relies on actually stand for is the modest proposition that the prosecution must show that the defendant who mailed the drugs intended to do so for the purpose of abortion. I will add here that OLC offers a very incomplete and misleading account of the foundational case that it cites, Bours v. United States (7th Cir. 1915). OLC does correctly state that the court in Bours “held that, ‘[i]n applying the national statute to an alleged offensive use of the mails at a named place, it is immaterial what the local statutory definition of abortion is, what acts of abortion are included, or what excluded.’” And it also correctly states that the court “further held that ‘[t]hough the letter of the statute would cover all acts of abortion,’ under a ‘reasonable construction,’ the statute should not be read to prohibit the mailing of advertisements for a procedure a doctor would perform in order ‘to save [the] life’ of the woman.” But OLC curiously omits key parts of the overall passage that inform its meaning. I underline the missing parts here:
In applying the national statute to an alleged offensive use of the mails at a named place, it is immaterial what the local statutory definition of abortion is, what acts of abortion are included, or what excluded. So the word “abortion” in the national statute must be taken in its general medical sense. Its inclusion in the statute governing the use of the mails indicates a national policy of discountenancing abortion as inimical to the national life. Though the letter of the statute would cover all acts of abortion, the rule of giving a reasonable construction in view of the disclosed national purpose would exclude those acts that are in the interest of the national life. Therefore a physician may lawfully use the mails to say that if an examination shows the necessity of an operation to save life he will operate, if such in truth is his real position.
In short, the court in Bours discerned in the predecessor version of section 1461 “a national policy of discountenancing abortion as inimical to the national life.” It excluded from the “general medical sense” of abortion only an operation to save the life of the mother. Far from limiting the statute (as OLC would) to abortions that are unlawful under the laws of the particular state in which the alleged violation occurred, it declared that “it is immaterial what the local statutory definition of abortion is, what acts of abortion are included, or what excluded.”
Oddly, OLC maintains, in footnote 5, that it “assume[s] without deciding that state law, as well as federal, is relevant to the application of section 1461.” But if state law is not relevant, it should be even more clear that Bours should defeat OLC’s position.
OLC offers plenty of other arguments, and I’m not going to try to address them here. My limited point is that it’s far from clear that OLC’s position is correct.
On Part II: Applying its atextual reading of section 1461, OLC argues that even when someone mails mifepristone and misoprostol with the knowledge that they are intended to be used to cause an abortion, “such knowledge alone is not a sufficient basis for concluding that section 1461 has been violated.” For example, if the drugs are sent into states that have gestational limits on abortion, use of those drugs within those limits would be lawful.
I see no point in contesting OLC’s hypotheticals (which, again, are relevant only if its reading of section 1461 is adopted). For regular shippers of abortion drugs, a criminal investigation is likely to yield ample evidence that would enable a prosecutor to charge, and a jury to find, a violation of section 1461 with the intent that OLC maintains is requisite.
As OLC acknowledges, “some states have independently enacted laws to restrict the mailing of these drugs for abortion purposes within their jurisdiction.” Anyone who plans to ship drugs into those states will face the prospect of criminal liability under state law.