Most abortions today aren’t performed surgically. Rather, the growing majority result from taking drugs designed to induce abortion.
President Biden’s Food and Drug Administration has been dropping long-standing safety restrictions on those drugs, including the requirement that they be obtained directly from a health care provider.
Still, a federal law on the books for more than a century bans using the mail to send anything that can be used to induce abortion. Predictably, the Department of Justice has manufactured a spin on that law that would make it unenforceable. But their tortured interpretation is wrong.
Congress enacted what has become known as the Comstock Act in 1873, as a movement to stop what the American Medical Association condemned as the “slaughter of countless children” by abortion that swept the country. Named for Anthony Comstock, the anti-vice crusader who championed its passage, the act prohibited the Postal Service from delivering “any article or thing designed or intended for the … procuring of abortion.”
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This provision appears today in 18 United States Code Section 1461 of the federal criminal code and is just as straightforward. It designates as nonmailable matter “every article or thing designed, adapted, or intended for producing abortion.” It would be difficult to make this any clearer. An abortion pill or drug is a “thing” under the statute.
After the Supreme Court overturned Roe v. Wade last June, holding that the Constitution “does not confer a right to abortion,” the U.S. Postal Service asked the Department of Justice whether Section 1461 prohibits mailing the drugs used today to cause an abortion.
Proving that creativity knows no bounds in the hands of politically motivated lawyers, the department’s Office of Legal Counsel said that Section 1461 prohibits mailing those drugs only when the sender intends “that the recipient of the drugs will use them unlawfully.”
That is pure applesauce.
What the OLC did to Section 1461 cannot even be called interpretation. Instead, in the sage words of Justice George Sutherland, this was “amendment in the guise of interpretation.” The OLC created a new statute that, unlike the real one, would pose no obstacle to the Biden administration’s abortion agenda.
The goal of interpreting a statute, the Congressional Research Service explains, is “adhering to Congress’s intended meaning,” and the Supreme Court has identified some principles, or canons, that help reach that goal. If a statute’s plain and ordinary meaning is unambiguous, the presumption is that Congress meant what it enacted and interpretation is complete.
The OLC opinion did not even pretend to follow this process for an obvious reason. Section 1461 makes no mention of senders or recipients, but focuses only on “article[s] or thing[s].” Merriam-Webster defines design and intend to mean “have as a purpose” and adapted as “suited by … design to a particular use.”
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The plain and ordinary meaning of Section 1461 is that if abortion is a purpose for which an article or thing is suited, it may not be conveyed or delivered through the mail. By acknowledging that mifepristone and misoprostol are “two prescription drugs that are commonly used to produce abortions,” the OLC opinion itself concedes that they fall within Section 1461, as properly interpreted.
The only way for the OLC to avoid this inexorable conclusion was to bypass proper statutory interpretation altogether. The opinion puts front and center “extrinsic evidence,” in the form of a few judicial decisions, that Section 1461’s unambiguous language puts off-limits. In fact, only one of those decisions involved the Comstock Act’s abortion provision, and that decision, it turns out, actually contradicts the OLC’s position.
The OLC’s responsibility was to derive Congress’ meaning from Section 1461 by applying the established interpretive principles. Instead, the OLC opinion looked for a more politically useful meaning to impose upon the statute. It was an illegitimate and politicized attempt to create a statute that Congress never enacted.
This piece originally appeared in The Washington Times