20 State AGs: Abortion-by-Mail Scheme Is Unsafe, Illegal
Distributing abortion pills through the mail is unsafe and illegal under both federal and state law, wrote Missouri Attorney General Andrew Bailey and the attorneys general of 19 other states, in letters to the headquarters of national pharmacy chains CVS and Walgreens. Both companies are seeking certification from the Food and Drug Administration (FDA) to dispense abortion pills through the mail. “We will use every tool at our disposal to uphold the law if broken,” said Bailey.
The Missouri attorney general was joined on the letters by the attorneys general of Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia.”
“Federal law expressly prohibits using the mail to send or receive any drug that will ‘be used or applied for producing abortion.’ 18 U.S.C. § 1461,” state the letters (the bodies of which are identical). “The text could not be clearer: ‘every article or thing designed, adapted, or intended for producing abortion … shall not be conveyed in the mails.’ And anyone who ‘knowingly takes any such thing from the mails for the purpose of circulating’ is guilty of a federal crime.”
While the law is clear, the letters suggested the confusion originated from another source. “In December, the Biden administration’s Office of Legal Counsel encouraged the U.S. Postal Service to disregard this plain text.”
“But,” continue the letters, “the text, not the Biden administration’s view, is what governs. And the Biden administration’s opinion fails to stand up even to the slightest amount of scrutiny. The Biden administration’s opinion admits that the plain text of § 1461 prohibits using the mail to send or receive any drug that will be used for abortion …. But then the Biden administration argues that the text should not be ‘“[t]aken literally”’ by “marshalling a series of increasingly strange antitextual arguments.”
Because of the weakness of the Biden administration’s opinion, pharmacy giants cannot protect themselves from legal liability by hiding behind its opinion, the letters warn. The AGs predicted that courts will “reject the Biden administration’s bizarre interpretation” because “courts do not lightly ignore the plain text of statutes.” In particular, “the Supreme Court has been openly aversive to other attempts by the Biden administration to press antitextual arguments.”
Additionally, “a future U.S. Attorney General will almost certainly reject the Biden administration’s results-oriented, strained reading.” A simple change of administration — guaranteed every four to eight years — would leave the abortion pill-by-mail infrastructure out in the cold.
But “consequences for accepting the Biden administration’s reading could come far sooner,” the letters warn. “Section 1461 can be enforced … through civil litigation by State Attorneys General and private parties under § 1964(c).” In other words, these state AGs have threatened to sue CVS and Walgreens if they follow through on their intention to become abortion dispensaries.
In addition to the violation of federal law, “the laws of many states also prohibit using the mail to send or receive abortion drugs,” continue the letters. Using the example of Missouri, not only is it “unlawful to distribute an abortion drug through the mail,” but also “Missouri law also prohibits unfair or deceptive trade practices — and trade practices that violate federal law necessarily are unfair and deceptive.” This prohibition on unfair or deceptive trade practices is far more difficult to dodge or challenge in court, and it is likely paralleled in the laws of other states.
The letters justified Missouri’s state-level prohibition by explaining that abortion pills are unsafe. First, they “are far riskier than surgical abortions, … ‘5.96 times as likely to result in a complication as first-trimester aspiration
abortions.’” Second, “when these heightened complications invariably occur, women suffer those harms at home, away from medical help.” Third, “mail-order abortion pills also invite the horror of an increase in coerced abortions … because there is no oversight. Outside the regulated medical context, a person can obtain an abortion pill quite easily and then coerce a woman into taking it.”
CVS and Walgreens have come under increasing pressure after they announced plans to obtain FDA certification to dispense abortion pills. Earlier this month, 14 pro-life groups wrote letters to both pharmacy corporations, urging them to reconsider. Meanwhile, other pharmacies, like Walmart, are waiting in the wings to see whether the decision backfires.
Joshua Arnold is a staff writer at The Washington Stand.