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Abortion Pill Manufacturer Drops Mississippi Legal Challenge

a photo of Lynn Fitch standing at a podium wearing a blue dress with a red coat over it
Mississippi Attorney General Lynn Fitch claimed victory after abortion-pill manufacturer GenBioPro, Inc., dropped its lawsuit challenging the state’s broad abortion ban Aug. 18, 2022. Photo Mississippi Attorney General

An abortion-pill manufacturer dismissed a federal lawsuit yesterday, giving up its challenge to a Mississippi law prohibiting nearly all medication abortions in the state. The pharmaceutical company, GenBioPro, Inc., which makes a generic version of mifepristone, did not offer an explanation for its decision. But Mississippi Attorney General Lynn Fitch took credit in a statement yesterday.

“We are pleased to have again successfully defended Mississippi’s abortion laws,” she said. “These laws represent the will of the people and the intent of the Legislature to promote life, protect the health and safety of women, and preserve the integrity of the medical profession. Our victory in Dobbs affirmed the right of the people to pass laws that defend these legitimate public interests.”

The attorney general’s statement pointed out that she had argued in a court filing earlier this month that “two federal laws prohibit the distribution of abortion drugs through the mail,” referring to the 1873 Comstock Act and the 1996 Communications Decency Act. The U.S. Department of Justice has long declined to enforce the abortion provisions of those laws, however. 

The first, 18 U.S.C. § 1461, says that “every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use” is “nonmailable.” The second law, 18 U.S.C. § 1462, prohibits using “any express company or other common carrier or interactive computer service for carriage in interstate or foreign commerce … any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.”

Though not currently enforced, both laws say that anyone breaking them could face up to five years in prison for a first offense or up to 10 years for subsequent offenses. Fitch argued in her filing earlier this month that those convicted under 1461 and 1462 could even face racketeering charges under the federal Racketeer Influenced and Corrupt Organization Act, also known as RICO.

When the Mississippi Free Press first reported on her claim that federal law prohibits mailing abortion pills, Fitch’s office declined a request for an interview to discuss the filing, saying they “do not comment on active litigation.” With the case dismissed, this publication again asked for comment. 

“We can see what we can do, but you may want to read her brief, attached. It lays out our argument rather succinctly,” Williams responded this morning, attaching the same legal brief the Mississippi Free Press reported about on Aug. 10.

A crowd of women hold signs that say "Abortion Pills Forever"
In a legal filing on Aug. 4, 2022, Mississippi Attorney General Lynn Fitch claimed that mailing abortion medication is illegal under federal law and punishable by five years in prison with federal RICO charges possible. She pointed to decades old laws that the U.S. Department of Justice does not enforce. Seen here, abortion-rights activists set up an abortion pills educational booth as they protest outside the Supreme Court in Washington, Monday, July 4, 2022. AP Photo/Jose Luis Magana

Mississippi boasts the nation’s highest infant death rate, highest fetal death rate and lowest overall life expectancy rate. From 2013 to 2016, Mississippi’s pregnancy-related maternal mortality rate was 1.9 times higher than the U.S. as a whole, with Black women hurt the most.

“With Roe v. Wade behind us, it is time for all parties to come together to enact laws that will empower women and promote life, such as more affordable and accessible childcare, stronger and more equitable child support enforcement, and improved adoption and foster care systems,” the attorney general said in her statement Thursday evening. “The Dobbs decision embodied our belief in the dignity of women, of children, and of human life itself, and we will pursue the agenda that transforms that belief into action.”

During the 2022 legislative session, though, the Mississippi House killed a Senate-passed bill that would have extended postpartum Medicaid for new mothers from the current 60-day limit to 12 months. Mississippi House Speaker Philip Gunn, an outspoken abortion opponent including for young victims of incest, has long opposed the idea of expanding or extending Medicaid. “We need to look for ways to keep people off (Medicaid), not put them on,” the Republican leader told the Associated Press in March.

See the MFP’s full coverage and archive on abortion rights in Mississippi here and the Jackson Free Press archive here.

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