By Frederick S. Lane

Photo credit: Jason Lawrence

In my previous post, “The Napoleon of the Mailbags,” I talked about the enthusiasm of Christian nationalists for a re-invigoration of the 1873 Comstock Act. In the view of zealots like US District Court Judge Matthew Kaszmyrak (D. 19th Cent.), the law's long-dormant prohibition against the mailing of “(e)very article or thing designed, adapted, or intended for producing abortion” amounts to a national ban of mifepristone and misoprostol, the two medications most commonly used to induce abortion.

After hearing oral arguments in Alliance for Hippocratic Medicine v. FDA on March 26, 2024, SCOTUS is weighing whether or not to uphold Judge Kaszmyrak’s decision. The high court’s opinion most likely will be issued at the end of June or in early July 2024.

Even if the Court rules in favor of the plaintiffs, that does not necessarily mean that mifepristone or misoprostol will be banned from the mails. For more than 100 years, despite the language of the Comstock Act, federal courts and the US Postal Service have upheld the mailing of contraceptives or abortion-related items so long as there is a legally-permissible use of such items in the destination state.

The Biden administration supports that position. In a December 2023 memo, Assistant Attorney General Christopher H. Schroeder concluded that 18 U.S.C. § 1461 (the statutory location of the Comstock Act) “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.” Since both mifepristone and misoprostol can be used for a variety of purposes other than abortion, Schroeder said, a shipper of the drugs may not intend to break the law even if the drugs are shipped to a state that prohibits their use to induce abortion. For the sake of thoroughness, Schroeder also listed seven other legal theories that could protect mail delivery of these drugs.

Courts and administrations can change, of course, so there are at least two scenarios in which the USPS might be required to prohibit the mailing of abortion drugs.

First, if asked, SCOTUS could overrule more than a century-plus of precedent and declare that even if abortion drugs can be used for other legal purposes, the language of the Comstock Act prohibits sending them through the mail. A year ago, I would have said it was very unlikely the Court would arbitrarily reverse such a long-standing interpretation of the statute. But like so many others, I underestimated the depths of the majority’s hostility to abortion in particular and women in general.

Second, a hostile Congress and administration could join forces to specifically criminalize the drugs themselves. Among its myriad other assaults on abortion, the Heritage Foundation’s Project 2025 Mandate for Leadership calls for the Food & Drug Administration to reverse its approval of both mifepristone and misoprostol. Alternatively, Congress could adopt legislation that bans the drugs outright. (Louisiana, for instance, is considering legislation that would add both mifepristone and misoprostol to the state’s list of “controlled dangerous drugs.” Anyone caught possessing one or both drugs without a prescription could be imprisoned for up to ten years; a possible exception, however, may be added for pregnant women planning to use the pills to end their pregnancy.

Let’s assume that one (or even both) of those scenarios occurs. It would then become a federal crime to mail abortion drugs, punishable by imprisonment for up to five years for a first offense and up to ten years for each succeeding offense. Mifepristone and misoprostol would join the long list of things that the USPS works aggressively to interdict each day.

“Mail Cover” Investigations 

For the time being, at least, the privacy of first-class mail is well-established. Under the principles of the Fourth Amendment to the United States Constitution, postal employees are required to obtain a search warrant from a judge or magistrate before opening a letter or package. Criminals, of course, are aware of that, which is one of the reasons that so many risk using the US mails to ship drugs and other types of contraband.

As many currently incarcerated drug dealers could tell you, the warrant requirement for opening first-class mail does not prevent US postal inspectors from investigating criminal activity. Over the decades, the USPS has developed a variety of tools and techniques for identifying potential suspicious packages and establishing the probable cause necessary to obtain a search warrant. All these techniques (and more) could be deployed to stop the shipment of abortion drugs.

One investigative tool, the so-called “mail cover,” dates to 1893, when Anthony Comstock was serving as a special agent for the Postal Service (although there is no evidence that he was involved in its implementation). The concept of the “mail cover” is simple: whenever someone is suspected of using the mails for criminal purposes, postal service employees or other law enforcement officials can request that the USPS create a record of any information on the exterior of mail sent to that person. Much like public social media posts or garbage cans on the sidewalk, courts have held that postal customers have no expectation of privacy in what is written on the outside of first-class mail that they send or that is sent to them.

The information generated by a “mail cover,” particularly if collected over a long period of time, can be very useful in criminal investigations. A return address, for instance, might foolishly reveal the actual source of the contraband. Handwriting might confirm another suspect’s involvement. The look and feel of multiple packages can help postal inspectors develop a “profile” for possible shipments of contraband. The list of possible evidence goes on and on.

The use of “mail covers” by the USPS was largely unknown to the public until the early 1950s, when allies of Senator Joseph McCarthy (R-Wis.) discovered that his mail was being monitored as part of an investigation into alleged financial improprieties. A decade later, “mail covers” again generated headlines during an extensive examination of ongoing government surveillance of American citizens. Led by Senator Edward V. Long (D-Mo.), the probe catalogued a wide range of surveillance practices, including “mail covers,” that were being used by government agents with little or no oversight. In a lengthy op-ed published in 1964, Senator Long argued for the outright abolition of “mail covers”:

The time has come for the Post Office Department to return to its function as a postal service. It has no business concerning itself with who writes to whom or with what is said in personal correspondence. Its job is to pick up, transport and deliver the mail, not act as an agent for law enforcement officers be they lazy or overzealous. I would think that few postmen cherish the role which is now forced upon them of private eye or secret police. We should leave these practices to the police state and to the tyrant. 

Senator Long’s arguments fell on deaf ears. While the Postal Service agreed to make some changes to its handling of “mail covers,” the practice has continued to the present day. Lawmaker concerns persist; just last year, Wired obtained a letter from a bipartisan group of US Senators to Chief Postal Inspector Gary Barksdale, asking him to stop the practice unless a “mail cover” is approved by a federal judge or necessary due to exigent circumstances. The USPS declined to comment on the letter to Wired and there is no indication that any changes have been made.

What no one saw coming in the 1890s, and what Senator Long barely suspected in the 1960s, was the dramatic impact of both computer technology and digital imaging. As I’ll explore in more detail in my next post on this topic, the information gathered using a “mail cover” is no longer limited to a series of handwritten notes in a dusty file cabinet.

Instead, each piece of information is a digital Lego block that can be stored, connected to other blocks gathered from myriad of sources, sorted, manipulated, and compiled into a data portrait of incredible detail and specificity. As we’ll see, all of this can occur without any court supervision whatsoever. In benign hands, governmental data collection is scary enough; for malign actors, the potential for misuse and abuse is profound. (For a disturbing metaphor of this process, check out Brickit, an app that uses AI to catalog a pile of random Lego blocks in a photo and suggest things that can be made from those specific blocks.)

The real teaser for the next post is this: even if the USPS is not required to prohibit the mailing of mifepristone and misoprostol, one or more states will pass laws targeting those drugs. While states cannot pass laws directly affecting the US mails (Congress has sole authority under the US Constitution), they can adopt legislation controlling possession or distribution of the drugs within state lines. Information from “mail covers” could be very helpful in prosecuting such cases and over the years, the USPS has been more than happy to set up “mail covers” for any state or local law enforcement agents who request one.

And as we’ll see, “mail covers” are just the tip of the iceberg. Data collection by the USPS (and other government agencies) has been on steroids in this country since the attack on 9/11. All that investigative firepower can far too easily be trained on people who are simply trying to exercise their right to make their own reproductive healthcare choices, and the people who want to help them.

About the Author 

Frederick S. Lane is an author, attorney, educational consultant, and lecturer based in Brooklyn, NY. He is a nationally-recognized expert in the areas of cybersafety, digital misconduct, personal privacy, and other topics at the intersection of law, technology, and society. Lane has appeared on The Daily Show with Jon Stewart, CNN, NBC, ABC, CBS, the BBC, and MSNBC. He has written eight books, including Cybertraps for Educators. Find him online at FrederickLane.com and on Twitter (@fsl3).