Yes, Congress is in shambles, and it’s entertaining as hell. But this week, the news you may have missed out on is that abortion pills are having some great legal breakthroughs. One of the biggest victories for abortion access? The United States Postal Service can carry and deliver abortion pills—even in anti-abortion states.
The good people of the USPS working through snow and rain are not violating the Comstock Act by delivering abortion pills through the federal mail system, according to new memo from the Department of Justice released Tuesday evening. The Comstock Act made it illegal, back in 1873, to mail, possess or sell “obscene materials”—like information about birth control and abortion—if the sender couldn’t verify if the material would be used legally. But the DOJ analysis concludes that simply mailing, delivering or receiving drugs like mifepristone or misoprostol through the Postal Service “lacks the intent that the recipient of the drugs will use them unlawfully.”
The Postal Service asked for the DOJ to review this potential loophole for prosecuting federal workers after the Supreme Court overturned Roe v. Wade last June. “Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, 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,” the opinion states.
The Postal Service applauded this news in a statement to ABC News. DOJ’s analysis “confirms that the Comstock Act does not require the Postal Service to change our current practice, which has been to consider packages containing mifepristone and misoprostol to be mailable under federal law in the same manner as other prescription drugs.”
This will allow people who are interested in self-managed abortion to continue to access care through programs like Aid Access, as well as people who live in the nearly half of states were abortion is illegal in some form. Not having to worry that simply receiving your abortion pills could put you in legal jeopardy is a victory for abortion access.
Not only did the Department of Justice give the Postal Service the knowledge that continuing to delivery medication abortion is legal, two major pharmaceutical chains waded into the medication abortion fray. Walgreens and CVS—two of the nation’s largest retail pharmacy chains—announced they will be certified to distribute mifepristone. “We intend to become a certified pharmacy under the program. We are working through the registration, necessary training of our pharmacists, as well as evaluating our pharmacy network in terms of where we normally dispense products that have extra FDA requirements and will dispense these consistent with federal and state laws,” Walgreens confirmed in a statement to Jezebel.
The FDA has slowly brought regulations around medication abortion in line with science, which repeatedly finds that abortion is one of the safest medical procedures available. The regulatory body’s slow moves have come at the same time as abortion pills became the most common way for people to have abortions: Medication abortions now account for more than half of all abortions, up from 39 percent only five years ago.
CVS said the chain also will work where medication abortion is legal. “We plan to seek certification to dispense mifepristone where legally permissible,” spokeswoman Amy Thibaut said in a statement to the New York Times.
Jezebel has also reached out to Walmart, Rite Aid, Kroger and Albertsons, which are among the largest retail pharmacy chains in the country to check if any others will be pursuing mifepristone certification. We’ll update you if we hear back.
While I didn’t expect major American businesses to announce they’d attempt to provide abortion pills in states where medication abortion is illegal, the mention of “legally permissible” is still pretty sad. If a national chain like CVS only offers mifepristone at Oregon or New York clinics, that’s not really a victory for expanded access, as it still leaves patients from places like Texas and Alabama turning toward other options. So while Capitol Hill is providing hours of entertainment this week, don’t forget the quiet and boring legal work being done to make abortion pills a slightly more realistic option for patients in growing abortion deserts.