USPS Says It Will Follow the Laws Regarding Mailed Abortion Pills

The Biden Administration’s mail-order abortion regime is being challenged in part of a federal lawsuit — but no matter the outcome, the United States Postal Service (USPS) plans to “follow the law,” Postmaster General Louis DeJoy said.

The Washington Post published a question and answer-style interview with DeJoy on Wednesday, which included a question about how the USPS is handling laws around abortion pills as the lawsuit continues.

“A federal judge in Texas issued a ruling earlier in April placing severe restrictions on abortion medication, including if it can be sent through the mail. That ruling is currently stayed and under review at the Supreme Court. What is the Postal Service’s role in enforcing laws around mailed abortion pills?” the Post asked DeJoy. 

DeJoy signaled that the USPS does not plan on crossing legal lines, should a federal court ultimately rule against allowing the abortion pill mifepristone to be sent by mail.

“We follow the law. Whatever we get told to do, we’re going to do. And if the law in fact gets changed, we will have to follow that law instead. It’s that simple,” he said in response. “And if the law gets changed, we’re going to have to deal with, ‘Are we actually effectively able to respond to it?’ At some point you’re just totally eroding the mission of the Postal Service, and its ability to support itself.”

In December 2021, the U.S. Food and Drug Administration (FDA) said it would permanently lift the requirement for women to obtain mifepristone in person from a health provider, ultimately paving the way for telemedicine abortion services and mail-order abortions. The agency officially removed the in-person requirement from its regulatory rulebook in 2023. 

The FDA made the move the same day President Joe Biden’s Department of Justice (DOJ) cleared the USPS to deliver abortion drugs to states with abortion restrictions and bans, offering “limited assurances that a federal law addressing the issue won’t be used to prosecute people criminally over such mailings,” according to Politico.

“A legal opinion, from Justice’s Office of Legal Counsel, concludes that a nearly 150-year-old statute aimed at fighting ‘vice’ through the mail is not enforceable against mailings of abortion drugs as long as the sender does not know that the drugs will be used illegally,” according to the report.

In November 2022, Alliance Defending Freedom (ADF) filed a lawsuit against the FDA on behalf of four national medical associations and several doctors challenging the FDA’s 2000 approval of mifepristone, as well as subsequent agency actions deregulating the drug and its 2021 move allowing the pill to be sent via mail.

“The Comstock Act declares ‘nonmailable’ every ‘article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use it or apply it for producing abortion,'” the lawsuit states. “It is indisputable that chemical abortion drugs are both ‘drug[s]’ and are ‘for producing abortion.’ Therefore, federal criminal law declares they are ‘nonmailable.”’

This month, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas handed down a 67-page decision saying that the FDA’s actions were illegal under federal law, issuing a nationwide injunction blocking the abortion pill.

Days later, the U.S. Court of Appeals for the Fifth Circuit partially granted a stay requested by the Biden Justice Department. The court’s 42-page opinion temporarily put on hold the part of the decision about the 2000 FDA decision because it might be past the deadline for bringing legal challenges, but added that it was a “close call” and that the court might go the opposite direction after receiving additional legal arguments. But the appellate court rejected a stay on anything from 2016 to the present — including the 2021 action allowing the mailing of abortion pills —affirming the trial court’s injunction.

On Friday, the Supreme Court issued an administrative stay that preserves access to the abortion pill and allows subsequent agency actions to stand while litigation plays out in lower courts.

Justice Clarence Thomas said he would have denied the DOJ’s application for stays, and Justice Samuel Alito wrote a dissent that criticized the FDA for not acting “equitably.”

“As narrowed by the Court of Appeals, the stay that would apply if we failed to broaden it would not remove mifepristone from the market,” Alito wrote. “It would simply restore the circumstances that existed (and that the Government defended) from 2000 to 2016 under three Presidential administrations.”

“Our granting of a stay of a lower-court decision is an equitable remedy. It should not be given if the moving party has not acted equitably, and that is the situation here,” he added. “The Food and Drug Administration (FDA) has engaged in what has become the practice of “leverag[ing]” district court injunctions “as a basis” for implementing a desired policy while evading both necessary agency procedures and judicial review.”

The applications are Danco Laboratories v. Alliance for Hippocratic Medicine, No. 22A901, and FDA v. Alliance for Hippocratic Medicine, No. 22A902 in the Supreme Court of the United States.