Post-Roe, the US Mail, and Compstock Act
Recently the Department of Justice released a legal memorandum addressed to the US Postal Service - a letter about mailing of misoprostol + mifepristone in a Post-Roe world
(Read time - 4-5 mins)
What is the Compstock act?
Passed in 1873, the Compstock Act is a compilation of legislation that regulates mailing via USPS. In its original form, it “criminalized any use of the U.S. Postal Service to send any of the following items: obscenity, contraceptives, abortifacients, sex toys, personal letters with any sexual content or information, or any information regarding the above items.”
What happened with Compstock Act and misoprostol + mifepristone?
In our Post-Roe world, the USPS was concerned about the legalities of delivering mailed packages containing misoprostol + mifepristone. And the DOJ responded with a love letter of its own - a memorandum to the General Counsel of the US Postal Service. This memo specifically outlined the ability to send and deliver mail packages with misoprostol + mifepristone via USPS (and other services) across various states. DOJ responded by saying:
We conclude that section 1461 does not prohibit the mailing, or the delivery or receipt by mail, of mifepristone or misoprostol where the sender lacks the intent that the recipient of the drugs will use them unlawfully… Federal law does not prohibit the use of mifepristone and misoprostol… Moreover, there are manifold ways in which recipients in every state may use these drugs, including to produce an abortion, without violating state law. Therefore, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully….
And, to the extent relevant, these drugs can serve important medical purposes and recipients in every state can use them lawfully in some circumstances.
What does this really mean in plain English?
It means that senders and deliverers of misoprostol+mifepristone via mail would be acting legally in doing so. Read National Law Review’s summary:
“there is a scenario where the medication could be sent anywhere in the United States and be used lawfully. There are enough plausible scenarios where the medication can be used in a lawful manner that the sender or the deliverer will not have the requisite intent that the medications will be used unlawfully. Consequently, USPS and the sender are still acting legally when they send and deliver the medication to the recipient.”
What changed?
This allows the delivery of misoprostol + mifepristone via mail (USPS or other mailing services). Various states have been looking to regulate and restrict the ability to legally send/mail these medications given their utility in medical abortion. However, the USPS (and other mailing services) are now considered to be within their legal means to continue delivering these medications.
What about other news on pharmacies dispensing misoprostol + mifepristone and Plan B One-Step?
The FDA has been busy distributing a little love across the board for misoprostol + mifepristone, and Plan B One-Step. Lots to know about and watch over the months to come.
Here are some great summary articles from Health Affairs, NY Times, and another one from The Hill.
Final Thought
As 2023 unfolds, so will the saga of reproductive rights and restrictions. While 2022 may have been tumultuous from the policy lens, 2023 will likely yield even further policy implications. Advocacy for individual rights vs. restrictions will continue, and each of us may want to reflect on how we influence this advocacy. Even policies that are seemingly unrelated (ie Comstock Act, Post-Roe world, and US mail) have implications for access to healthcare. As clinicians, keeping up to date on these policies can be quite a task, but we are not alone in keeping a pulse. There are resources to leverage - professional societies, KFF, CommonWealth Fund, Health Affairs, and more.
On a related note, I have started populating the section on Capsules of Books, Podcasts, and Online Resources -- I welcome you to check them out periodically. I will be updating the list. If you have suggestions to add to the list, leave a comment.
“Our hopes for a more just, safe, and peaceful world can only be achieved
when there is universal respect for the inherent dignity and
equal rights of all members of the human family.”
– Phumzile Mlambo-Ngcuka, UN Women Executive Director
ps - how adorable are the mailbox photos? I may have a new favorite background image collection