(Slip Opinion)

1 

### Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions

Section 1461 of title 18 of the U.S. Code does not prohibit the mailing of certain drugs that ca n be used to perform abortions where the sender lacks t he intent that the recipient of the drugs will use them unlawfully. Because there are manifold ways in whichrecipients in every state may lawfully use such drugs, including to produce an abortion, th e mere mailing of such drugs to a particular jur isdicti o n is an insufficient basis for concluding that the sender intends them to be used unlawfully

.

December 23 , 20 2 2

M EMORANDUM O PINION FOR THE G ENERAL C OUNSEL U NITED S TATES P OSTAL S ERVICE

In the wake of the U nited States Supreme Court’s recent decision overru l ing Roe v. Wade , 410 U.S. 113 (1973), 1 y ou have asked for this Office’s view on wh ether section 1461 of t itle 18 of the United States Code prohibits the mailing of mifepristone and misoprostol, two prescription drugs that are commonly used to produ ce abor t ions
, 2 among other purposes

. Memorandum for Christopher Schroeder, Assistant Att orney General, Office of Legal Counsel, from Thomas J. Marshall, General Counsel, United States Postal Service, Re: Request for an Interpretation of 18 U.S.C. § 1461 , a t 1 (J ul y 1, 2022) (“USPS Request”). Originally enacted as part of the Comstock Act of 1873, section 1461 currently declares “[e]very article or thing designed, adapted, or intended for producing abortion,” as well as “[e]very article, instrument, substanc e, dr ug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion,” to be “nonmailable matter” that the United States Postal Service (“USPS”) may not lawfully deliver. 18 U.S. C. § 1461

. W e conclude that section 1461 does not prohibit the mailing, or the deliver y or receipt by mail, of mifepristone or misoprostol where the sender

1 See Dobbs v. Jackson Women’s Health Org. , 142 S. Ct. 2228 (2022)

. 2 See Ct r s. for Disease Control & Prevention, U.S. Dep’t of Health & Hum. Servs., Abortion Surveillance

— United States, 2019 , 70 MMWR Surveillance Summaries, Nov. 26, 2019, at 8
, https://www.cdc. gov/mmwr/volume s /70/ss/ss7009a1.htm

.4 6 Op. O.L.C. __ ( Dec. 23
, 202 2 )

2 lacks the intent that the recipient of the drugs will use them unlawfully. 3 This conclusion is based up o n a long standing judicial construction of the Comstock Act, which Congress ratif ied and USPS itself accepted

. Federal law does not prohibit the use of mifepristone and misoprostol

. I ndeed, the U.S. Food and Drug Administration (“ FDA ”) has determined the us e of mif epristone in a regimen with misoprostol to be safe and effective for the medical termination of early pregnancy

. 4 Moreover, t here are manifold ways in which recipients in every state may use the se drugs , including to produce an abortion
, without v i olating state law

. T herefore, 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. 5

3 A cognate provision, 18 U.S.C. § 1462, imposes similar abortion

- related prohibitions on using an express company or other common carrier for “carriage ” of such items

. Our analysis in this memorandum is applicable to that provision as well.
Sections 1461 and 1462 refer not only to perso ns who transmit such items by mail or by common carrier

— the senders

— but also to individuals who “knowingly cause[]” s uch items to be mailed, id. § 1461; “knowingly take[]” any such item s from the mail for the purpose of circulating or disposing of them, id

. ; or “knowingly take[] or receive[]” such items from an express company or common carrier, id. § 1462. In the diffe rent contexts of obscenity and child pornography, courts of appeals h ave held that section 1461 applies to the act of the recipient who ord ers the nonmailable material and thereby “causes” it to be mailed. See, e.g. , United States v. Carmack , 910 F.2d 748 , 748 (11th Cir. 1990); United States v. Johnson , 855 F.2d 299, 305

– 06 (6th Cir. 1988). But see Johnson , 855 F.2d at 307

– 11 (Merritt, J., dissenting); United States v. Sidelko , 248 F. Supp. 813
, 815 (M.D. Pa. 1965). As far as we know, however, these prov isions have never been applied to prosecute the recipients of abortion

- and contraception

- related materials. Moreover, the court of appeal s decisions we discuss below construed the relevant provisions of the Comstock Act to turn on the nature of the sende r’s intent, not that of the recipient. Consistent with this practice, we focus on the sender throughout this memorandum. To the extent a recipient might be covered , however, our analysis herein would apply and therefore section 1461 would not prohibit th at person from ordering or receiving the drugs if she does not intend that they be used unlawfully.

4 See Mifeprex (Mifepristone) Tablets
, U.S. Food & Drug Admin. 2 (Mar. 2016), https://www.accessdata .fda.gov/drugsatfda_docs/label/2019/020687s022lbl.pdf (m ifepristone label) ; see also Mifeprex ( M

ifepristone) Information
, U.S. Food & Drug Admin., https://www.fda.gov/drugs/postmarket

- drug

- safety

- information

- patie nts

- and

- providers /mifeprex

- mifepristone

- information (last updated Dec. 16 , 2021)

. 5 For purposes of this opinion, we assume but do not decide that section 1461 could be constitutionally appl ied to the mailing of drugs intended to produce abortions. We a lso assume without deciding that state law, as well as federal, is relevant to the application of section 1461

. In addition, we do not address here whether and under what circumstances the ma iling of mifepristone or misoprostol might violate other federal laws. Finally , asApplication of the Comstock Act to Drugs That Can B e Used for Abortions

3 I.

The Comstock Act has a long and comple x history. The original 1 873 la w was th e handiwork of Anthony Comstock

— “a prominent anti

- vice crusader who believed that anything remotely touching upon sex was

. . . obscene ”

— who successfully lobbied Congress and state legislatures in the nineteenth century to enact expansive law s “to prevent the mails from being used to corrupt the public morals.” Bolger v. Youngs Drug Prod s

. Corp. , 463 U.S. 60, 70 n.19 (1983) (omission in origin al) (quotation marks and citations omitted); see also Priscilla J. Smith, Contraceptive Comstockery: Reason i ng from Immorality to Illness in the Twenty

- First Century , 47 Conn. L. Rev. 971, 982

– 84 (2015). Originally en t itled “An Act for the Suppression of Trade in, and Circulation of, obscene Literature and Articles of immoral Use,” Act of Mar

. 3, 1873, c h. 258, 17 Stat. 598 (“1873 Act”)
, t he Act is perhaps best known for having pr ohibit ed the distribution of a wide range of writings until courts and the E xecutive B ranch determined that the Free Speech Clause of the First Amendment significantly limited th e permis sible re ach of the law
, s ee, e.g. , Bolger
, 463 U.S. at 69

– 75

. In addition , t he Act also included several restricti ons on the conveyance of things designed to prevent conception or to produce abortion. 6 Congress largely repealed the references to contracept ives in

you note, USPS Request at 3, some states have independentl y enacted laws to restrict the mailing of these drugs for abortion purposes within their jurisdiction. See, e.g.
, Tex

. Health & Safety Code § 171.063(b

- 1). We do not here asses s the possible effect of federal law on such state restrictions, other than to n ote our agreement with your view that the doctrine of intergovernmental immunity would preclude application of s uch state laws against USPS employees who are complying with the ir duties under federal law. See Intergovernmental Immunity for the Department o f Veterans Affairs and Its Employees When Providing Certain Abortion Services , 46 Op. O.L.C. __, at *1

– 5, *10 ( Sept. 21, 2022)

. 6 The original 1873 Act co nsisted of five secti ons, three of which are relevant to this opinion. Section 1 of the Act prohibited
, inter alia , the sale, distribution, or possession, in the District of Columbia and federal territories, of “any drug or medicine, or any article whatever, for the preventio n of conception
, or for causing unlawful abortion,” along with advertisements for contraceptiv es and abortion services and information about how to obtain them

. 1873 Act § 1, 17 Stat. at 59 8

– 99 (emphasis added). Congress chose not to include that prohibi tion when it comprehensively enact ed t itle 18 into positive law in 1948. See Pub. L. No. 80

- 7 72, § 21, 62 Stat. 683, 864 (1948) (repealing, inter alia , 18 U.S.C. § 512 (194 6 ))

. Section 2 of the Act, which eventually became codified as section 1461, crim inalized the mailing of, inter alia , “obscene, lewd, or lascivious” writings ; “any art icle or thing4 6 Op. O.L.C. __ ( Dec. 23
, 202 2 )

4 1971. See Pub. L. No. 91

- 662, 84 Stat. 1973 (1971) (discussed infra Part I.C)

. In its current form, section 1461
, which is derived f rom section 2 of the 1873 Act, begins by declaring “ [ e ] very obscene, lewd, lascivious, indecent, filthy or vile art icle, ma tter, thing, device, or substance” to be “nonmailable matter” that “ shall not be conveyed in the mails or delivered from any post off ice or by any letter carrier .” 18 U.S. C. § 1461

. The next clauses declare nonmailable “[e] very articl e or thing des igned, a dapted, or intended for producing abortion, or for any indecent or immoral use; and [e] very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or
app ly it for prod ucing ab ortion, or for a ny indecent or immoral purpose.” Id. ; s ee also 39 U.S.C. § 3001 (a) (likewise declaring such matt er to be

“ nonmailable ”). Section 1461 further makes it a felony to “ knowingly

use [] the mails for the mailing, carriage in the mails, or deliver y ” of any such things, or to “ knowingly cause []” them “ to be delivered by mail according to the direction there on .” 18 U.S. C. § 1461

. In addition, 18 U.S.C. § 1462 imposes two other, related prohibitions: it makes it unlawful to b ring those same th ings “ in to the United States, or any place subject to the jurisdiction thereof ,” and it prohibits the knowing use of “any

intended or adapted for any indecent or immoral use or nature” ; and “any article or thing designed or intended for the prevention of conception or procuring of abortion.” 1873 Act § 2, 17 Stat. at 59 9. Before Congress enacted t itle 18 into po sitive law in 1948, the provision that is now section 1461 was codified at 18 U.S.C. § 334 (19 25

– 19 2 6 )

. Section 3 of the 1873 Act prohibited all persons “from importi ng into the United States” any of the “hereinbefore

- mentioned articles or thi ngs”

— referri ng to the items prohibited by sections 1 and 2. 1873 Act § 3, 17 Stat. at 599. One year later, see Act of June 20, 1874, ch. 333, 18 Stat. pt. 3, at 113

– 14, Congress codified section 3 of the Comstock Act as section 2491 of the Revised Statut es and, in doi ng so, replaced the section’s reference to the “hereinbefore

- mentioned articles or things” with a list of articles and things pulled from the other provisions of the Comstock Act
, see Rev. Stat. § 2491 (1st ed. 1875), 18 Stat. pt

. 1, at 460; see also Rev. Stat. § 2491 (2d ed. 1878), 18 Stat. pt. 1, at 457. In supplying content to these words, Congress prohibited the importation of articles or things “ for causing unla wful abortion,” reflecting the language of section 1 of the original Comstock Act. Rev. Stat

. § 2491 (1st ed. 1875), 18 Stat. pt. 1, at 460

. Congress consistently retained the words “unlawful abortion” in follow

- on versions of this restriction , including in subsequent Tariff Acts through 1930, after which the provision was codified at 19 U.S.C. § 1305.Application of the Comstock Act to Drugs That Can B e Used for Abortions

5express company or other common carrier or interactive computer service” for “carriage” of such items “in interstate or foreign commer ce.” 7
O ver the course of the last century, the J udiciary, Congress , and USPS have all settled upon an understanding of the reach of section 1461 and the related provisions of the Comstock Act that is narrower than a literal reading mig ht suggest. This con structio n occurred long before the Supreme Court’s decisions in Griswold v. Connec ticut , 381 U.S. 479 (1965), and Roe and thus was not dependent upon the Court’s recognition of constitutional rights regarding the prevention or terminat ion of pregnancy. B eg inning e arly in the twentieth century, federal courts construed the provisions no t to prohibit all mailing or other conveyance of items that can be used to prevent or terminate pregnancy. By the middle of the century, the well

- establ ished, consensus interp retation was that none of the Comstock Act provisions, including section 1461, p rohibit s a sender from conveying such items where the sender does not intend that they be used unlawfully. USPS accepted that construction and informed Congress of it. O n sever al occas ions, Congress reenacted and amended the Comstock Act against the backdrop of the judicial precedent in a manner that ratified the federal courts’ narrowing construction.

A.
Since early in the twentieth century, federal courts have agreed that

sec tion 146 1 and related Comstock Act provisions do not categorically prohibit the mailing or other conveyance of items designed, adapted, or intended for preventing or terminating pregnancy.
In 1915, in Bours v. United States , 22 9 F. 960 (7th Cir. 1915) , th e U.S. C ourt of Appeals for the Seventh Circuit reversed the conviction of a doctor who had mailed a letter address ing how a woman might procure an “operation” from him. The court noted that Congress enacted the provision that is now section 146 1 pursuant to its “ national power of controlling the mails” and held that
, “[i]n applying the national statute to an alleged offensive use of the mails at a named place, it is immaterial what

7 The importation prohibition

— along with 19 U.S.C. § 1305 (prohibiting the importation into the United States of “any drug or medicine or any article wha tever for causing unlawful abortion”)

— derives from section 3 of the original 1873 Act, see § 3, 17 Stat. at 5 99. The common

- carrier prohibitions derive from an 1897 law extending the mailing prohibitions of the original Comstock Act to common carriers

. S ee Act of Feb. 8, 1897, ch. 172, 29 Stat. 512

.4 6 Op. O.L.C. __ ( Dec. 23
, 202 2 )

6 the local statutory definition of abortion is
, what acts of abortion are in cluded, or what excluded .” Id. at 964. T he court further held that

“ [t]hough the letter of the statute would cover all acts of abortion, ” under

a “ reasonable construction, ” the statute should not be read to prohibit the maili ng of advertisements for a proc edure a doctor would perform in order “to save [the] life” of the woman. Id. Because the indictment had not drawn this distinction, the defendant had no opportunity to explain whether he had intended to perform the operatio n “only under such circumstances as would make it the duty of any reputable physician to perform the act

. ” I d. at 965

. T herefore
, the court reversed the judgment and remanded the case. Id. at 966. Fifteen years later, in Youngs Rubber Corp. v. C.I. Lee & Co. , 45 F.2d 103 (2d Cir. 1930), t he U.S. Court of Appeals for the Second Circuit also reasoned in dicta that the statute could not be construed as expansively as its language might suggest. Youngs Rubber was a trademark infringement suit in which the d efen dant s argued that the plaintiff’s busin es s was unlawful because it involved sending Trojan condoms to druggists for retail sale via the mail and common carriage, a practice that

— according to the defendant

— violated the Comstock Act. Id. at 108. “Taken literally,” the appeals court wrote, t he C omst ock Act’s “language would seem to forbid the transportation by mail or common carriage of anything ‘adapted,’ in the sense of being suitable or fitted, for preventing conception or for any indecent or immoral purpose, even though the article might also be capable of legitimate uses and the sender in good faith supposed that it would be used only legitimately.” Id. “Such a construction,” the
court cautioned , “would prevent mailing t o or by a physician of any d rug or mechanical device ‘adapted’ for co ntracept ive or abortifacient uses
, although the physician desired to use or to prescribe it for proper medical
purposes

. ” I d. T he court observed that New York law did not prohibit suppl ying such articles to physic ians “or by their direction or prescription .” Id. a t 109 (quotation marks omitted)

. R eason ing that “[t] he intention to prevent a proper medical use of drugs or other articles merely because they are capable of illegal uses is not lig htly to be ascribed t o Congress
, ” t he court construed the statute ’ s contra ception and abortion
pro hibitions to “ r equir [e] an intent on the part of the sender that the article mailed or shipped by common carrier be used for illegal contraception or abortion .” Id. at 108.
In 1933, the U.S. Court of Appeals for the Sixth C ircuit e mbraced the

same limiting construction of the Comstock Act. Davis v. United States
,Application of the Comstock Act to Drugs That Can B e Used for Abortions

7 62 F.2d 473 (6 th Cir. 1933)
, involved a defendant who was convicted of, among other things, the sale of “rubber sund ries” to druggists that were delivered by common carrier

. Id. at 474. Invoking the “ rule of reasonable construction,” id . at 475
, the Davis court reversed the conviction becausethe district court did not permit the admission of evidence that the defenda nt had sent the items intending that they be used for “tre atment and prevention of disease” rather than to prevent concepti on , i d. at 474. Th e court quoted with approval Youngs Rubber ’s view that the statute should be read to “requir[e] an intent on the p art of the sender that the article mailed or shippe d by com mon carrier be used for illegal contraception or abortion or for indecent or immora l purposes,” id. , and noted that the “soundness of its reasoning commends itself to us,” id. at 475. The court

ac cordingly rejected the district court’s conclusion t hat the statute “brings within the condemnation of each section articles or things that ar e capable of being used for the specified purposes without respect to their having a legitimate use, and without r egard to the intent of the persons mailing [them]
, ” id. at 4 74, holding instead that “intent that the articles

. . . shipped in interstate com merce were to be used for condemned purposes is a prerequisite to conviction
, ” i d. at 4 75. Three years later, the Second Circuit revisited the issue and ad o pted Young s Rubber ’s dicta as a holding in United States v. One Package , 86 F.2d 737 (2d Cir. 1936). In that case, a New York gynecologist had imported vaginal pessaries from a Japanese sender who had asked the do ctor to use them in her practice to assess whether th ey were useful for contraceptive purposes. Id. at 738. At the time, New York law prohibited thesale or provision of articles for the prevention of conception, but it included an exception for the prov ision of such things to physicians “who may in good fai th presc ribe their use for the cure or prevention of disea se

. ” I d. (citing N.Y. Penal Law § 1145 (Consol. Laws, c. 40) ). The doctor testified that she prescribed the items only where her patient had a health

- related reason such that “it would not be desira ble for a patient to undertake a pregnancy
, ” which the c ourt of appeals apparently understood to fall within the exception under New York law that permitted physicians
to provide patients with contra ceptives for particular purposes

. Id. 8 T he court quoted f avorably , and at length, from the dicta in Youngs Rub ber
, and noted the accord of the Sixth Circuit in Davis

. Id. at 738

– 39. It then

8 The court of appeals noted that the accuracy an d good faith of the doctor’s testimony was “not questioned.” One Package
, 86 F.2d at 738.4 6 Op. O.L.C. __ ( Dec. 23
, 202 2 )

8 dismissed the case because none of the relevant provisions sho uld be read to prohibit the mailing or importation of items t o preven t or terminate
pregnancy with the intent that they be used for lawful purposes. Id. at 739

– 40. T he court reasoned that it was appropriate to , in effect, imply the insertion of the adjec tive “unlawful
, ” which expressly modified the word “ab ortion” i n some p rovisions of the Comstock Act, to modify the terms

“ prevention of conception” and “abortion” throughout the various provisions that derived from the Act

. Id. 9 The court elaborated: [ W] e are satisfied that this statute, as well as all t he acts we h ave refe rred to, embraced only such articles as Congress would have denounced as immoral if it had understood all the conditions under which they were to be used. Its design, in our opinion, was not to prevent the importation, sale, or carriage by mail of things w hich might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well being of their patient s. The word “ unlawful ” woul d make this clear as to

9 The case involved the “prevention of conception” prong of the Tariff Act of 1930

— a descendent provision of the original Comstock Act

— which prohibit ed importing art icles “for the prevention of conception or for causing unlawful abortion.” One Package , 86 F.2d at 738 (emphasis a dded) ( quot ing 19 U.S.C. § 1305(a) (1934 ) ) ; see also supra
note 6. The court noted that the original 1873 Comstock Act likewise used the adjec tive “unlawful” to modify “abortion” in one of its provisions (section 1

— involving the sale and possession of abo rtifacients in federal territories) but not in others, and not as to articles for preventing conception. One Package , 86 F.2d at 739. The court reasoned that Congress could not reasonably have had the design to make the “unlawful” nature of the intended use an element of the offense under some of the abortion

- related prohibitions but not others, or as to the importation of items used for abortion but not those used for contraception. See id. (“[I]n the Comstock Act, .

. . the word ‘unlawful’ was sometime s inserted to qualify the word ‘abortion ,’ and sometimes omitted. It seems hard to suppose that under the second and third sections articles inten ded for use in procuring abortions were prohibited in all cases while, under the first section, they were onl y prohibited when intended for use in an ‘unlawful abortion.’”). Instead, the court reasoned, the adjective “unlawful” must in effect be read to mo dify all of the prohibitions. Id. ; see also id

. at 740 (Learned Hand, J., concurring) (“[I]t is of consider able importance that the law as to impor tations should be the same as that as to the mails; we ought not impute differences of intention upon slight distinctions in expression.”). The One Package court’s analysis that the adjective “unlawful” should be re ad to modify all of the provisions of th e Comstock Act is bolstered by the 1874 Congress’s understanding of the term “hereinbefore

mentioned articles” in section 3 of the Comstock Act to prohibit the import only of articles, drugs, or medicines “for causin g unlawful abortion.” See supra note 6; Rev. Stat. § 2491 (1st ed. 1875), 18 Stat. pt. 1, at 460.Application of the Comstock Act to Drugs That Can B e Used for Abortions

9 articles for producing abortion, and the courts hav e read an exemption into the act covering such articles even where the word “ unlawful ” is not used. The same exception should apply to articles for prev enting conception. . . . It seems unreasonable to suppose that the national scheme of legislatio n involv es such inconsistencies and requires the complete suppression of articles, the use of which in many cases is advocated by such a weight of authority in the medical world.

Id. Th e Second Circuit again reaffirmed this construction of the statute sho rtly the reafter in United States v. Nicholas , 97 F.2d 510 (2d Cir. 1938)
, which involved the Comstock Act’s prohibition on mailing information about contracep tion . C iting Youngs Rubber and One Package
, the court in Nicholas noted : “W e have twice decided that contr aceptive articles may have lawful uses and that statutes prohibiting them should be read as forbidding them only when unlawfully employed .” Id . at 512

. 10 Applying this reading
, the cour t held that USPS was required to deliver a magazine containing c ontracep tion

- related information to a magazine editor who might then distribute it to persons such as physicians who could use the information lawfu lly

. Id. The court further held t hat USPS should detain a book containing such information when it was addressed to an individual “about whom nothing” was known “except that he was not a physician ,” id. at 511, but allowed for the recipient to “prove whether he is among the privileged cla sses” whose possession of the book “would be lawful ,” id. at 512.

10 Although Nicholas describe d the relevant inquiry a s being whether the articles were “unlawfully employed,” rather than whether the sender intended t hat they be used unlawfully

— the touchstone the court had adopted in Youngs Rubber and One Package

— this difference in phrasing does not reflect a departure rel evant to our analysis . T he court’ s invocation of those two earlier decisions without qualificatio n , as well as its further citation to Davis , in dicate s that i t did not intend to deviate from the interpretation of the Act that the court had adopted in those decisions. Both the Historical and Revision Note to section 1461 and subsequent federal decisions understood Nicholas similarl y. See 18 U.S.C. § 1461 (Historical and Revision Note) (observing that Nicholas followed “[t]he same rule” as Davis , which held t hat “the intent of the person” that a mailing “be used for condemned purposes was necessary for a conviction” (emphasis added) ); United States v. Gentile , 211 F. Supp. 383, 385 n.5 (D. Md. 1962) (citing, inter alia
, Nicholas for the proposition that “contr aceptive device s [must be] shipped and received with intent that they be used for illegal contraception or abortion”).46 Op. O.L.C. __ ( Dec. 23
, 202 2)

10 I n 1944, the U.S. Court of Appeals for the D.C. Circuit also narrowly construed the statute in the context of a report about contraceptive materials that a consumer group had published and mailed to individuals who submitted a signed certificate attesting
, “I am married an d use prophylactic materials on the advice of a physician.” Consumers Union of United States, Inc. v. Walker , 145 F.2d 33, 33 (D.C. Cir. 1944). The appeals court explained that it was “inclined to follow the interpretation [of the Comstock Act ] whi ch has b een adopted in other circuits,” citing to Nicholas
, Davis
, Youngs Rubber , and One Package

. Id. at 35 & n.11. It therefore concluded that “Congress did not intend to excl ude from the mails properly prepared information intended for properly qualified people ,” and held that the report “was proper in character within the meaning of those decisions.” Id . at 35

. Subsequent judicial discussions of the relevant Comstock Act p rovisions recognized the narrowing construction upon which the courts of appeals had conv erged

. See, e.g.
, United States v. Gentile , 211 F. Supp. 383, 385 n.5 (D. Md. 1962) (“ It seems clear under the authorities that in order to make out an offense under this paragraph the Government should be required to allege and prove that contraceptive de vices are shipped and received with intent that they be used for illegal contraception or abortion or for indecent or immoral purposes. ” (citing Youngs Rubber
, Davis
, and Nicholas ) ); United States v. H.L. Blake Co. , 189 F. Supp. 930, 934

– 35 (W.D. Ark. 1960 ) (“ It would seem reasonable to give the word ‘adapted’ a more limited meaning than th at above suggested and to construe the whole phrase ‘designed, adapted or intend ed’ as requiring an intent on the part of the sender that the article mailed or sh ipped by common carrier be used for illegal contraception or abortion or for indecent or immor al purposes.” (quoting Youngs Rubber , 45 F.2d at 108) ); United States v. 31 Photographs , 156 F. Supp. 350, 357 (S.D.N.Y. 1957) (characterizing the appellate court decisio ns as “upholding importation of contraceptives and books dealing with contraception when sought to be brought into the country for purposes of scientific and medical resear ch,” such that “ only contraceptives intended for ‘unlawful’ use were banned ” (citing
, inter alia
, One Package
, Nicholas
, Davis , and Walker )) ; see also Poe v. Ullman , 367 U.S. 497, 54 6 n.12 (1961) (Harlan, J., dissenting) (“[B]y judicial interpretatio n .

. . the absolute prohibitions o f the [Comstock] law were qualified to exclude professi onal medical use.” (citing Youngs Rubber
, Davis , and One P ackage ))

.Application of the Comstock Act to Drugs That Can B e Used for Abortions

11 As the court in one of those later cases noted, the analysis in Youngs Rubber “has been cited man y times and has become the law to be applied to the facts where the question of a violatio n of the statute . . . is before the court.” H.L. Blake Co. , 189 F. Supp. at 934

. Under that “ law to be applied,” the court explained, “it is well established that the defendants should not be convicted unless it is established beyond a reasonable doubt th at at the time they mailed the sample packages of prophylactics . . . they intended them to ‘be used for illegal contraception.’” Id. at 935 (quoting Youngs Rubber , 45 F.2d at 108)

. 11

B.
Congress has amended the Comstock Act’s provisions numerous t imes since the federal courts’ decisions in Bours
, Youngs Rubber
, Davis
, One Package
, Nicholas , and Walker , each time perpetuating the wording of the Act’s abortion

- relate d provisions

. Moreover , as we explain in greater detail below, USPS accepted the cour ts’ narr owing construction of the Act in administrative rulings , and it informed Congress of the agency’s acceptance of that construction in conn ection with Congress’s am endment of the contraception

- related provisions of the Comstock Act. We conclude that Congres s’s repeated actions, taken “[a]gainst this background understanding in the legal and regulatory system,” Texas Dep’t of Housing & Cmty. Affs. v. Inclusive Cmtys. Project , 576 U.S. 519, 536 (2015), ratified the Judiciary’s settled narrowing constru ction. S ee id. (“If a word or phrase has been .

. . given a uniform interpretation by inferior courts

. . . , a later version of that act perpetuating the wording is
pr esumed to carry forward that interpretation.” (omissions in original ) (quoting A ntonin S calia & B ryan A . Garner, Reading Law: The Interpre11 The leading cases tha t established this accepted construction

— Youngs Rubber
, One Package
, and Davis

— each involved items that could be u sed to prevent conception rather than to produce abortion. Nevertheless, the canonical passage from Youngs Rubber
, repeated in each of the ca ses and in others thereafter
, referred both to items designed to prevent conception and to those designed to induce abortions

. Moreover, the court in One Package went to lengths to explain that all of the relevant Comstock Act prohibitions should be read consistently to require proof of a sender’s intent to facilitate unlawful downstream use. See supra note 9 ; see also Bours
, 229 F. 960 (construing narrowly the prohibition on mailing of information about how to obtain abortions). We therefore agree with your assessment that “ there is no apparent reason why the case

- law principles applic able to contraceptive articles (fo rmerly) under Section 1461 would not also apply to abortion

- inducing articles under the same provision.” USPS Request at 3 n.3.4 6 Op. O.L.C. __ ( Dec. 23
, 202 2 )

12 tation of Legal Texts 322 (2012) )); Lo rillard v. Pons , 434 U.S. 575 , 580 (1978) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretati on when it re

enacts a statute without change .”); cf. Bragdon v. Abbott , 524 U.S. 624, 645 (1998) (“When administrative and judicial interpretations have settled the me aning of an existing statutory provision, repetition of the same language in a new statu te indic ates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.”); Forest Grove Sch. Dist. v. T.A. , 557 U.S . 230, 244 n.11 (2009) (holding that when Congress amended the Individuals with Disabilities Ed ucation Act wi thout altering the text of a provision that the Supreme Court had previously interpreted
, Congress “ implicitly adopted [ the Court’s ] construction of the s tatute” ). The conclusion that Congress ratified the longstanding judicial view of the C omstock Act is strongly reinforced by the Historical and Revision Note that was included in the 1945 report of the House Committee on the Revision of the Laws 12 when Co ngress enacted t itle 18 of the U.S. Code into positive law

. 13 Th at Note subsequently was a ppend ed to the official U.S. Code entries for s ections 1461 and 1462

. See 18 U.S.C. § 1461 (Historical and Revision Note). 14 It specifically “invited” the “attention of Congress” to the courts of appeals ’ decisions in Youngs Rubber
, Davis
, Nicholas , and One P ackage , and quote d at length from Youngs Rubber
, including its conclusion that the relevant provisions of the statute should be construed to require “an intent on the part of the sender that the article

12 S ee H. R

. Rep. No. 79

- 152, at A96

– 97 ( 1945 )

. 13 S ee Pub. L. No. 80

- 772 , 62 Stat. at 768

. 14 The Historical and Revision Notes wer e written by a staff of experts hired by Congress to revise the U.S. Code in the 1940s, including the editorial staffs of the West and Th ompson publishing companies, the former Chief of the Appellate Section of the Depa rtment of Justice Criminal Division, and other contributors from both inside and outside of government. See H.R. Rep. No. 79

- 152, at 1

– 7 (1945) (describing in detail this

re vision process and noting that “[t]he [House] Committee on Revision of the Laws ha s exercised close and constant supervi sion over this work through its general counsel . . . and its special counsel”). The Supreme Court has discussed or relied on Historica l and Revision Notes numerous times, most frequently during the middle of the twen tieth century. See, e.g.
, Ex parte Coll ett , 337 U.S. 55, 65

– 71 (1949) (discussing a revision note to 28 U.S.C. § 1404 and concluding that the revision note was highly signif icant in determining the meaning of section 1404(a)) ; W

. Pac. R.R. Corp. v. W

. Pac . R.R. Co. , 345 U.S. 247, 254

– 55 (1953); Muniz v. Hoffman , 422 U.S. 454, 471

– 73 (1975)

.Application of the Comstock Act to Drugs That Can B e Used for Abortions

13 mailed or shipped by common carrier be used for ill eg al con traception or abortion.” Id. 15 Congress subsequently amended the Comstock Act four times (in 1955, 1958, 1971, and 1994) without changing the language in any respect that suggested disagreement with the well

- established narrowing interpretation that the Historical and Revision Not e had specifically brought to its attention

. Congress made the third of these amendments i n 197 1

— removing the Act’s references to contraceptives

— after being informed by the Post15 The Note’s complete discussion of the court of appeals decisions is as follows:
The attention of Congress is invited to the following decisions of the Federal courts construing this section and section 1462 of this title

. In Youngs Rubber Corporation, Inc. v. C. I. Lee & C o., Inc. , C.C.A. 1930, 45 F. 2d 103 , it was said that the word “adapted” as used in this section and in section 1462 of thi s title , the latter relating to importation and transportation of obscene matter, is not to be construed literally, the more reasonab le interpretation being to construe the whole phrase “designed, adapted or i ntended” as requiring “an intent on the part of the sender that the article mailed or shipped by common carrier be used for illegal contraception or abortion or for indecent or imm oral purposes.” The court pointed out that, taken literally, the language o f these sections would seem to forbid the transp ortation by mail or common carrier of anything “adapted,” in the sense of being suitable or fitted, for preventing conception or for any indecent or immoral purpose, “even though the article might also be cap able of legitimate uses and the sender in good f aith supposed that it would be used only legitimately. Such a construction would prevent mailing to or by a physician of any drug o r mechanical device ‘adapted’ for contraceptive or abortifacient uses, altho ugh the physician desired to use or to prescribe it for proper medical purposes. The intention to prevent a proper medical use of drugs or other articles merely because they are c apable of illegal uses is not lightly to be ascribed to Congress. Section 3 34 [this section] forbids also the mailing of obsce ne books and writings; yet it has never been thought to bar from the mails medical writings sent to or by physicians for proper p urposes, though of a character which would render them highly indecent if se nt broadcast to all classes of persons.” In United States v. Nicholas , C.C.A. 1938, 97 F. 2d 510
, ruling directly on this point, it was held that the importation or sending throug h the mails of contraceptive articles or publications is not forbidden absol utely, but only when such articles or publications a re unlawfully employed. The same rule was followed in Davis v. United States , C.C.A. 1933, 62 F. 2d 473 , quoting the obiter opi nion from Youngs Rubber Corporation v. C. I. Lee & Co.
, supra , and holding
t hat the intent of the person mailing a circular conve ying information for preventingconception that the article described therein should be used for condemned purposes was necessa ry for a conviction; also that this section must be given a reasonable
const ruction. (See also United States v. One Package , C.C. A. 1936, 86 F. 2d 737 .) 18 U.S.C. § 1461 (Historical and Revision Note)

.4 6 Op. O.L.C. __ ( Dec. 23
, 202 2 )

14 master General that both the federal courts and USPS had adopted this narrowin g i nterpretation. See H.R. Rep. No. 91

- 1105, at 3

– 4 (197 0 ). 16 Moreover, we have found no evide nce that Congress disapproved of the interpretation

. 17 Indeed, in 2007 Congress legislated regarding the FDA’s treatment of mifepristone in a manner consistent w ith th e understanding that the Comstock Act does not categorically prohibit the covered modes of conveying abortion

- inducing drugs

. 18 Congress’s several actions “perpetuating the wording” of the Comstock Act’s abortion provisions against the backdrop of a w ell

- es tablished, settled judicial construction that was brought to Congress’s attention

16 See supra note 11 (explaining that the courts of appeals’ rationales applied equally to conveyance of items to prevent conception and to produce abortion).

17 The House report state d at the outset of its discussion that “[e]xisting statutes completely prohibit the importation, interstate transportation, a nd mailing of contraceptive materials, or the mailing of advertisement or information concerning how or where such contraceptives m ay be obtained or how conception may be prevented.” H.R. Rep. No. 91

- 1105, at 2. That introductory remark, however, plainly was a reference to the literal text of the provisions , as opposed to their settled meaning. The report proceeded to convey the Postm aster General’s description of the settled judicial and administrative narrowing construction of the statute, noting that it was in tension with the text of the contraception provisions, and n either the report nor any evidence in the legislative record of which we are aware expresses the c ommittee’s disagreement with that construction.

18 In approving a mifepristone product fo r certain abortions in 2000, the FDA imposed certain restrictions on distribution as a condition of approval, pursuant to its regulato ry authority. See Letter for Sandra P. Arnold, Vice President, Population Council, from Ctr. for Drug Evaluation & Rsch., U.S. Food & Drug Admin., Re: NDA 20

- 687 (Sept. 28, 2000). In the Food and Drug Administration Amendments Act of 2007 (“FDAAA”), Congre ss provided that any such restrictions, identified in the FDAAA as “elements to

as sure safe use,” were deemed to be a “R isk Evaluation and Mitigation Strategy” that would continue to be required under the new statutory regime unless and until the FDA deter mined that modifications were necessary. See Pub. L. No. 110

- 85, tit. IX, § 909(b ), 121 Stat. 823, 950

– 51 (2007). In t he debate preceding this amendment, critics of the FDA’s 2000 approval of mifepristone for abortion purposes acknowledged that the legisla tion would apply to that mifepristone approval. See 153 Cong. Rec. S5765 (daily ed. May 9, 2007) (statement of Sen. C oburn); 153 Cong. Rec. S5469

– 70 (daily ed. May 2, 2007) (statement of Sen. DeMint). Yet neither those critics nor anyone else in the congre ssional debate mentioned the Comstock Act, even though it would have been natu ral to assume that the FDA’s 2000 appr oval had resulted in the distribution of mifepristone to certified physicians through the mail or by common carrier. Congress’s decision to carry forward the FDA’s regulatory conditions for mifepristone without addres sing such modes of distribution sugges ts that Congress did not understand the Comstock Act to invariably prohibit the conveyance by mail or common carrier of drugs intended to ind uce abortions.Application of the Comstock Act to Drugs That Can B e Used for Abortions

15 establishes Congress’s acceptance of th at narrowing construction. Inclusive Cmtys. Proj ect , 576 U.S. at 536

. That construction, as noted, does not prohibit the mailin g of an item that is designed, adapted, or intended for producing abortion in the absen ce of an intent by the sender t hat the item will be used unlawfully.

C.

USPS has accepted the settled judicial construction of the Comstock Act

— and reported as much to C ongress

. In 1951, the Solicitor of the Post Office Department, Roy C. Frank,
wrote to an Arizona postmaster concerning a Planned Parenthood clinic’s mailing of diaphragms and vaginal jellies to its patients “for medicinal purposes.” Contraceptive Matter

—

Mailings

— Physicians
, 9 Op

. Sol. P.O.D. 47 (1951) (No. 40). Citing “ the decisions of the Federal courts, ” Frank opined that a “ mailing of contraceptives by a physician to a patient would not be regarded as a violation” of the Comstock Act. Id. Similarly
, in 1963, wh en the St. Louis Postmaster detained 490 “contraceptive devi ces and substances,” the USPS General Counsel informed him that he should “dispatch” those items because “there is no available evidence that the items in each of these parcels were b eing distribu ted for unlawful purposes.” Letter for Harriet F. Pilpel, G reenbaum, Wolff & Ernst , from Louis J. Doyle, General Counsel, Post Office Department (Oct. 24, 1963) (on file with the Smith College Libraries). In a letter to the sender Emko Compa ny ’s counsel, t he USPS General Counsel added that “should we obtain evide nce in the future that [Emko] is distributing contraceptive devices and substances for unlawful purposes we will again look into the matter.” Id. Of particular importance, when Congr ess was consider ing amendments to the Comstock Act in 1970
, USPS brought to Congress’s attention its acceptance of the J udiciary’s narrowing construction. The PostmasterGeneral submitted a statement to Congress about his agency’s understanding that “t he delivery by mail of contraceptive information or materials has by court d ecisions, and administrative rulings based on such decisions, been considered proper in cases where a lawful and permissive purpose is present .” See H.R. Rep. No. 91

- 1105, at 3

– 4 ( 19 7 0 ). As a result, “[t]he lawful mailing .

. . of contraceptive articles

. . . is dependent on the interpretation given to the intended purpose.” Id. at 4. The Postmaster General noted that “[w] hat is a lawful purpose within the meaning46 Op. O.L.C. __ ( Dec. 23
, 202 2)

16 of the interpreta tion s given, though vaguely identifiable, has with the passage of time also been considerably broadened ” and that “ many States

. . . have adopted positive legislation to authorize or encourage public family planning services. ” Id

. As a result, by the tim e the Postmaster Genera l wrote to Congress in 1970

— after the Court’s Griswold decision holding unconstitutional a state prohibition on the use of contraception

—

“ it [was] quite clear that the cited law as presently written [was] unenforceable .” Id

. The Hou se Ways and Means Committee included the Postmaster General’s statement in its report on the draft amendment and noted that “[i]n view of” that statement

— along with statements supporting the draft amendment by the Departments of Labor and of Health, Education
, and Welfare

— the Com mittee on Ways and Means was “unanimous in recommending enactment of H.R. 4605.” Id. Congress then amended the Comstock Act to repeal most of the Act’s applications to contraceptives

. See Pub. L. No. 91

- 662, 84 Stat. at 1973

– 74. 19

* * * * *

Thus, before the Court’s recognition of a constitutional right to contraception in Griswold and to abortion in Roe
, the J udiciary, Congress, and USPS itself all understood section 1461 and the related provisions of the Comstock Act not to prohibit the conveyance of artic les intended for preventing conception or producing an abortion where the sender lack s the intent that those items should be used unlawfully. We further no te that, s hortly after Congress amended the Comstock Act in 1971 to eliminate the restrictions on con traceptives, the Supreme Court ’s decision in Roe effectively rendered unenforceable the restrictions on articles “designed, adapted
, or intended for producing abortion. ” F or the past half century , courts have not had the occasion to elaborate further on th e meaning of the Comstock Act as it relates to a bortion, including regarding

19 Although the 1971 Congress eliminated the preexisting broad prohibitions on sending contraception

- related articles and information using the mails or common carriage, it added a narrower prohibition designed to prevent the mailing of unsol icited contraceptive items and advertising to private homes. See 39 U.S.C. § 3001(e) ; see also 18 U.S.C. § 1461 (making it a crime to knowingly use the mails to mail anything deemed “nonmailable” in section 3001 (e) ). In Bolger , the Supreme Court held that the ban on unsolicited advertisements of contraceptives violates the First Amendment. 463 U.S. at 61.Application of the Comstock Act to Drugs That Can B e Used for Abortions

17 the sources of law that inform whether an abortion would be “ unlawful ” for purposes of the established construction of the Act.

II.

In Part I w e demonstrated that , in accord with the prevailing judicial construction Congress ratified, s ection 1461 does not prohibit the mailing of articles that can be used to produce abortion
, including mifepristone and misoprostol, where the sender lacks the intent that those items should be used u nlawfully. 20 We turn now to address the many circumstances in which a sender of these drugs typically will lack an intent that they be used unlawfully. Federal law does not prohibit the use of m ifepristone and misopr ostol for producing abortions

. Indeed, the FDA has determined the use of mifepristone in a regimen with misoprostol to be safe and effective for the medical termination of early pregnancy. And , to the extent relevant , the se drugs can serve important medi cal purposes and recipients in every state can use them lawfully in some circumstances

. This is true even when the drugs would be delivered to an address in a jurisdiction with restrictive abortion laws
, because women who receive the drugs in all fifty st ates may , at least in some circumstances , l awfully use mifepristone and misoprostol to indu c e an abortion. We note that those sending or delivering mifepristone and misoprostol typically will lack complete knowledge of how the recipients intend to use th em and whether that use is unlawful under re levant law. Therefore, even when a sender or deliverer of mifepristone or misoprostol, including USPS, knows that a package contains such drugs

— or indeed that they will be used to facilitate an abortion

— such kno wledge alone is not a suffi cient basis for co ncluding that section 1461 has been violated

. We also recognize that USPS may have reason to consider adopting uniform policies or practices regarding the mailing of mifepristone or misoprostol

. Cf

. Smith v. United States , 431 U.S. 291, 304 n.10 (1977) (“[T]he nationwide character of the postal system argues in favor of a nationally uniform construction of [section] 1461.”)

.

20 See su pra note 3 (noting that the same test would apply to section 1462 and to recipients of the drugs to the extent th ose persons might be amenable to prosecution)

.46 Op. O.L.C. __ ( Dec. 23
, 202 2)

18 We have not undertaken the challenging task of a detailed review of state abortion laws
, but we can offer some illustrative uses for m ifepristone and misoprostol that the law of a given state would not prohibit :

• First , in most states

— where a majority of the U.S. population lives —a bortion continue s to be lawful until at least twenty weeks ’
ge station

. It is very unlikely that someone sendi ng validly prescribed mifepristone or misoprostol into such states will intend for them to be used unlawfully.

• Second, e ven some states that in recent months have enacted or begun to enforce more restrictive abortion laws continue to allow abortion for at least some number of weeks of pregnancy

. Use of mifepristone and misoprostol to terminate a pregnancy that falls within that period would be lawful

.

• Third
, thus far, no state that has enacted or newly begun to enforce restrictions on abortion in the wake of Dobbs v. Jackson Women’s Health Org anization , 142 S. Ct. 2228 (2022), prohibits abortions that are necessary to preserve the life of the woman. 21 Many medical conditions that make pregnancy potentially li fe

- threate ning— for instance, certain heart conditi ons, pulmonary hypertension, or Marfan Syndrome 22

— are known in the first trimester, when women most commonly use mifepristone and misoprostol to induce an abortion

. Such a use of these drugs to terminat e a life

- thre atening pregnancy would be lawful

.

• Fourth , s ome state abortion restrictions also include exception s for cases of rape or incest, to protect the health of the woman, or where there are severe fetal anomalies. The use of mifepristone or miso21 See Dobbs , 142 S. Ct. at 2305 n.2 (Kavanaugh, J., concurring) (“ Abortion statutes traditionall y and currently provide for an exception when an abortion is necessary to protect the life of the mother. ”); see also Roe , 410 U.S. at 173 (Rehnq uist, J., dissenting) (“[I] f [a state] statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective

. . . .”).

22 See, e.g.
, Inst. of Med

. , Clinical Prevention Services for Women: Closing the Gaps 103

– 04 (2011) ; see also Burwell v. Hobby Lobby Sto res, Inc. , 573 U.S. 682, 737 (2014) (Kennedy, J., concurring) (noting that “[t]here are many medical conditions for which pregnancy is contraindic ated”).Application of the Comstock Act to Drugs That Can B e Used for Abortions

19 prost ol to pro duce an abortion in such cases would therefo re be lawful.

• Fifth , some states that regulate the conduct of certain actors involved in abortions do not make it unlawful for the woman herself to abort her pregnancy. In those contexts
, section 1461 m ight not prohibit the mailing of mifepristone and miso prostol to a woman in a state with restrictions on abortion , even if the sender does so with the intent that the woman use the drugs to produce an abortion.

• Sixth, even if a state prohibits a pregnant person from ingesting mifepristone or misoprostol for the purpose of inducing an abortion, such an individual has a constitutional right to travel to another state th at has not prohibited that activity and to ingest the drugs there. 23 Someone sending a wom an these drugs is un likely to know where she will use t hem , which might be in a state in which such use is lawful

.

• Seventh
, federal agencies provide abortion servic es in some circumstances without regard to contrary state law. 24 Mailings of abortion

23 See Dobbs , 142 S. Ct. at 2309 (Kavanaugh, J., concurring) (“[M]ay a State bar a resident of that St ate from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”) ; id. (referring to the question as “not especially diffi cult”) ; s ee also Bigelow v. Virginia , 421 U.S. 809, 8 2 4 (1975) (explaining that Virginia could not “prevent its residents from traveling to New York to obtain [abortion] services or .

. . prosecute th em for going there” (citing United States v. Guest , 383 U.S. 745
, 757

– 59 (1966)) )

. 24 The Department of Vete rans Affairs (“VA”), for example, recently has begun providing abortions to veterans and certain other VA beneficiaries without regard to state law when the life or health of the woman would be endangere d if the pregnancy were carried to term or the pregna ncy is the result of an act of rape or incest

. See Reproductive Health Services, 87 Fed. Reg. 55,287 , 55,288 (Sept. 9, 2022). “[S]tates may not rest rict VA and its employees acting within the scope of their federal authority from providing abortion servi ces as authorized by federal law, including VA’s rule. ” Intergovernmental Immunity for the Department of Veterans Affairs and Its Employees When Provi ding Certain Abortion Services
, 4 6 Op. O.L.C. __, at * 10 ; see also 87 Fed. Reg. at 55,294 (noting that st ate and local laws, including criminal laws, that “restrict[], limit[], or otherwise impede[] a VA professional’s provision of care permitted by” this new rule

“ would be preempted ” ( cit ing 38 C.F.R. § 17.419(b)) )

. Also, the Department of Defense (“DoD”) h as for many years provided service members, dependents, and other beneficiaries of DoD health care services with abortion services when a pregnancy is t he result of rape or incest or wh en continuing the pregnancy would endanger the woman’s life, and DoD ha s indicated it will continue to do so without regard to contrary state laws. See46 Op. O.L.C. __ ( Dec. 23
, 202 2)

20 medic ations intended to be used pursuant to these federal aut horities would be lawful under section 1461 , because contrary state law

c ould not constitutionally be applied

.

• Finally, individuals use mifepristone and misoprostol for medical purposes other than to induce abortions and the legality of those uses would re main unaffected by state restrictions on abortion

. For instance, the same dosage s of mifepristone and misoprostol that are used for medication abortion can be used to treat a miscarriage
, 25 and misopr ostol is commonly prescribed for the prevention and treat ment of gastric ulcers. 26
Thus, no matter where the drugs are delivered , a variety of uses of mifepristone and misoprostol serve important medical purposes and are lawful under federal and state l aw. Accordingly, USPS could not reasonably assume that the drugs are nonmailable simply because they are being sent into a jurisdiction that significantly restrict s abortion. Nor would such an assumption based solely on the recipient’s address be reaso nable even if it is apparent that some women in a particular sta te are using the drugs in question in violation of state law

. Cf. Youngs Rubber , 45 F.2d at 110 ( al though the volume of the plaintiff’s sales nationwide justified an inference that the drug stores to which the condoms were being delivered must have been se lling at least some of them for purposes that were prohibit ed under state law

— “and that plaintiff must know this”

— that was insufficient to conclude that the company intended such illegal cond uct by the recipients ). In conclusion, section 1461 does not proh ibit the mailing of mifepristone or misoprostol where the sender lacks the intent that the recipient will use them unlawfully

. And in light of the many lawful uses of mifepristone and misopr ostol, the fact that these drugs are being mailed to a

Memorandum for Senior Pentagon Leadership from Gilbert R. Cisneros, Jr., Under Secretary of Defense for Personnel and Readiness, Department of Defense, Re: Ensuring Access to Essential Women’s Health Care Services for Service Members, Dependents, Beneficiaries, and Department of Defense Civilian Employees (June 28, 2022).

25 See , e.g. , Honor Macnaughton, Me lissa Nothnagle & Jessica Early, Mifepristone and Misoprostol for Early Pregnancy Loss and Medication Abortion
, 103 Am. Fam

. Physician 473, 475 (Apr. 15, 2021)

. 26 See Cytotec M isoprostol T ablets , U.S. Food & Drug Admin. 5–6 ( Aug. 2016)
, https://www.accessdata .fda.gov/drugsatfda_docs/label/2018/019268s051lbl.pdf (misoprostol label).Application of the Comstock Act to Drugs That Can B e Used for Abortions

21 jurisdictio n that significantly restricts abor tion is not a sufficient basis for conclud ing that the mailing violates section 1461. 27

CHRISTOPHER H. SCHROEDER Ass istan t Attorney General

Office of Le gal Co unsel

27 While this request was pending
, we received a similar request from the Department of Health and Human Ser vices (“HHS” ) regarding the Comstock Act in connection with the Food and Drug Administration’s Risk E valuation and Mitigation Strateg y for mifepristone

. We conveyed our conclusions by e

- mail to HHS on December 19, 2022
, and we noted there that this memoran dum was for thcoming. E

- mail for Samuel Bagenstos, General Counsel, HHS, from Christopher H. Schroeder, Assistant Attorney General, Office of Legal Counsel, Re: Advice Regarding Comstock (Dec. 19, 2022, 8: 3 1 PM).