USPS employees can’t be sued by states for delivering abortion medications, DOJ finds

The Postal Service can continue to deliver prescription abortion medications nationwide, without the agency or its employees facing legal action in states that have restricted access to abortion, according to the Justice Department

DOJ’s Office of Legal Counsel, in an opinion released Tuesday, told USPS it can still deliver packages that contain mifepristone and misoprostol, two prescription drugs commonly used to induce abortions.

USPS general counsel requested a legal opinion from DOJ after the Supreme Court in June 2022 overturned its 1973 Roe v. Wade ruling, which guaranteed a federal right to have an abortion.

DOJ’s legal opinion protects USPS employees from facing legal consequences in states that have restricted abortion since the Supreme Court’s ruling last summer.

The Biden administration has ensured similar legal protections for federal health care workers who may need to conduct an abortion in states that may otherwise ban it.

“The Postal Service’s obligation is to deliver letters and packages that are mailable under federal law.  We take no position on abortion policy at either the federal or state level,” USPS said in a statement, adding that it sought a legal opinion from DOJ “to ensure that we are properly fulfilling our universal service mission.”

Christopher Schroeder, assistant attorney general for DOJ’s Office of Legal Counsel, wrote in DOJ’s legal opinion that USPS employees cannot face legal consequences for delivering packages that contain prescription abortion medications in any state that has restricted abortion access since the June 2022 Supreme Court ruling.

“We do not here assess the possible effect of federal law on such state restrictions, other than to note our agreement with your view that the doctrine of intergovernmental immunity would preclude application of such state laws against USPS employees who are complying with their duties under federal law,” Schroeder wrote to USPS attorneys.

DOJ’s legal opinion specifically finds current USPS practices do not violate the 1873 Comstock Act, which requires “every article or thing designed, adapted, or intended for producing abortion” to be considered “non-mailable matter” that USPS cannot deliver.

Schroeder wrote in his opinion that “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,” he wrote.

USPS said in a statement that DOJ’s opinion “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.”

DOJ’s opinion on behalf of USPS mirrors a similar legal opinion it issued to the Department of Veterans Affairs last September.

That opinion determined state government officials cannot pursue criminal or civil charges against VA employees for performing abortions, as they’re now authorized to do in limited, life-threatening situations.

VA Secretary Denis McDonough told members of the Senate VA Committee on Sept. 22 that the DOJ OLC opinion means state governments cannot penalize VA employees “performing their federal functions, whether through criminal prosecution, license revocation proceedings, or civil litigation.”

The VA earlier in September issued an interim final rule allowing its health care workforce to provide abortions and abortion counseling for veterans and other VA beneficiaries in life-threatening situations due to a pregnancy or in cases of rape and incest.

“I think this OLC opinion makes very clear the protections that are afforded VA providers,” McDonough told lawmakers in September.

Schroeder, in his legal opinion to USPS, references the “intergovernmental immunity” that protects VA employees from state-level legal action.

“States may not restrict VA and its employees acting within the scope of their federal authority from providing abortion services as authorized by federal law, including VA’s rule,” Schroeder wrote.

Schroeder also states that the Defense Department has for many years provided service members, dependents and other beneficiaries of DoD health care services with abortion services when a pregnancy is the result of rape or incest or when continuing the pregnancy would endanger the woman’s life.

“DoD has indicated it will continue to do so without regard to contrary state laws,” he wrote.

USPS said in a statement that individuals mailing packages are responsible for complying with USPS requirements.

The agency added that individuals may also have responsibilities under other statutes and regulations concerning the shipment of such matter, “but those laws are not generally administered or enforced by the Postal Service.”

“Many packages that may contain prescription drugs are sealed against inspection under federal law and therefore the Postal Service lacks knowledge of the specific contents of such packages,” USPS said in a statement. “Even if the Postal Service may be aware that a particular package contains mifepristone and misoprostol, the Postal Service lacks a sufficient basis to conclude that any particular package is unmailable under the Comstock Act based upon where it will be mailed and delivered for the reasons articulated in the OLC opinion. We will therefore continue to deliver such packages in accordance with our statutory universal service mission and Postal Service regulations.”

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