12 March 23
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Republican state attorneys general are threatening action against pharmacies that dispense it, as a federal lawsuit challenges the F.D.A.’s authority to approve it.
A week after the Court’s decision overruling Roe v. Wade, the U.S. Postal Service asked the Justice Department’s Office of Legal Counsel for advice about an existing federal statute that makes it a felony to mail anything “designed, adapted or intended for producing abortion, or for any indecent or immoral use.” The statute, which also prohibits mailing “obscene, lewd, lascivious, indecent, filthy or vile” materials, is a vestige of the Comstock Act of 1873, the work of Anthony Comstock, an infamous crusader against the corruption of public morals who became a special agent of the Postal Service. The question was whether that statute prohibits sending and delivering abortion drugs by mail. In December, the O.L.C. answered that the statute does allow the mailing of abortion pills “where the sender lacks the intent that the recipient of the drugs will use them unlawfully,” and that the “mere mailing” of the pills does not establish that intent. That is because no states have banned abortion in all circumstances, with many retaining exceptions for rape or for protecting a pregnant person’s life. Abortion being legal in those circumstances, a pharmacist could lawfully mail the pills, even to states where abortion is mostly illegal, because the sender would lack the intent that the pills would produce abortions of the unlawful kind.
Earlier this year, the F.D.A. announced that retail pharmacies could become certified to dispense mifepristone, including by shipping it to patients, and Walgreens announced that it would apply for certification. In response, nearly two dozen Republican state attorneys general sent letters to Walgreens, CVS, and other large pharmacies, claiming that the statute’s “plain text” prohibiting the mailing of any materials “for producing abortion”—and not what they called the O.L.C.’s “bizarre interpretation”—should be decisive. The A.G.s warned that, regardless of the federal government’s view, they could enforce the statute through civil litigation. And, they noted, many state laws also disallow using the mail to send and receive abortion drugs.
The O.L.C.’s interpretation is based on twentieth-century federal cases that declined to construe the statute literally, as doing so would criminalize the mailing of items that have lawful purposes, just because they can also be used for unlawful ones. Conservatives maintain that the statute makes no distinction between lawful and unlawful abortions, and so it prohibits mailing things intended to produce abortions, full stop.
Danielle Gray, Walgreens’ global chief legal officer, quickly responded to the red-state A.G.s by clarifying that the company will still seek certification to dispense mifepristone, but that it does not intend to ship it to people in their states. Gray was a law clerk for Merrick Garland when he was a judge on the D.C. Circuit, and for Justice Stephen Breyer when he was on the Supreme Court, and during the Obama Administration she served in the White House counsel’s office and as the Cabinet Secretary. She is plenty confident when it comes to legal interpretation.
The Walgreens decision, though, has resulted in calls for boycotts, a drop in the company’s stock, and blowback from Democratic governors, including Gavin Newsom, of California, whose office is withdrawing from a fifty-four-million-dollar contract with the company and “reviewing all relationships between Walgreens and the state.” Notwithstanding accusations of cowardice for “caving” to Republican threats, however, a different decision by Walgreens or other companies could subject pharmacists to criminal liability and civil actions. Even federal prosecutions for mailing the pills are imaginable if a Republican Administration is installed and rejects the Biden O.L.C.’s opinion. And federal courts, now filled with Trump appointees, may well highlight the statute’s text, rather than past court interpretations. Not to mention that defying state A.G.s could place the companies’ state pharmaceutical licenses at risk.
A precursor to the mailing of pills, of course, was the F.D.A.’s approval of them, which is now also under legal attack, twenty-three years after the fact. Last month, nearly two dozen Republican-led states filed an amicus brief supporting a federal lawsuit in Texas, claiming that approving mifepristone for abortion had violated the F.D.A.’s own rules. The regulations, they said, permit approval of drugs “that have been studied for their safety and effectiveness in treating serious or life-threatening illnesses,” which they allege does not cover pregnancy. The judge in the case, a pro-life Trump appointee, may order the agency to rescind its approval of the drug, and possibly halt its availability nationwide.
That lawsuit was countered last month by a separate one, in which twelve Democratic states are asking a federal court in Washington State to find the F.D.A.’s approval of mifepristone valid and prevent its removal from the market. The suit also challenges the agency’s special restrictions on access to the drug—for example, the requirement that pharmacies be certified to dispense it and, further, that they confirm that the prescription is from a certified provider. If the two federal cases result in conflicting orders, the Supreme Court will soon find itself presented with another abortion case. So much for federal courts getting out of the “abortion-umpiring business,” as Justice Antonin Scalia once put it.
But, beyond lawsuits and boycotts, the proper target for pro-choice complaints is Congress. It has not managed to pass the Women’s Health Protection Act, which would establish a federal statutory abortion right to replace the constitutional right that the Court removed. And it has never repealed the Comstock Act, leaving us in the situation where nineteenth-century sexual morality now shapes the twenty-first-century abortion debate. Still, as the branch constitutionally empowered to make laws for the nation, Congress should, at the very least, amend the statute to make it clear that drugs can be mailed for lawful abortions. Alas, that would resolve but one legal interpretative front in the ongoing war of red versus blue states, and of federal versus state governments.
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