“The gates of hell used to be the abortion clinic. Now, the gate of hell is the mailbox.”
Thus began Bryan Dawson’s segment with Alabama Attorney General Steve Marshall last week on the 1819 News Podcast “After Hours.” Marshall nodded heartily in agreement with Dawson’s statement.
They are right.
But what if I told you there is something we could do about this situation?
As I’m sure you know, the U.S. Supreme Court finally overruled Roe v. Wade in the 2022 Dobbs v. Jackson Women’s Health Organization decision, returning the issue of abortion to the states. Alabama’s Human Life Protection Act went into effect immediately, thanks to Attorney General Marshall getting an injunction lifted incredibly quickly. That law made it a Class A felony for a doctor to perform abortions on women subject to two very limited exceptions. Immediately, the brick-and-mortar abortion shops were essentially put out of business. Hallelujah!
That doesn’t mean the fight for life is over. Recently, the Justice Department opined that the U.S. Postal Service (USPS) could send abortion pills through the mail, even though the federal Comstock Act explicitly says that the postal service can’t do that. The DOJ opinion is probably all that USPS needs to begin shipping abortion pills.
Fortunately, I think federal law would allow USPS to be sued under the right circumstances.
A federal law called the Federal Torts Claims Act provides that the USPS can be sued if it causes the death or injury of a person by the wrongful act of an employee if he is operating within the scope of his duties and if they would be liable under state tort law.
That’s a lot of legalese, so let me break it down.
First, USPS would have to cause the death of a “person.” Are unborn children people? In this case, the federal courts would likely look to state law to determine whether unborn children are “people.” Alabama law, probably more than any other state in the Union, strongly recognizes the personhood of the unborn.
Second, it would have to cause death or injury to a person. Abortion pills kill unborn children. Moreover, they injure women more than Planned Parenthood or the Biden administration would like us to believe.
Finally, USPS would have to be liable under Alabama law. The Alabama Supreme Court has held that our wrongful death laws apply to unborn children. The only reason it did not apply to abortion before Dobbs was Roe. But since Roe is gone, those laws should now apply to wrongful death by abortion.
Thus, if there’s one state in the Union that would be great for a civil suit against USPS, it’s Alabama.
Who would have the right to sue? In the legal world, we call this “standing.” I can’t just go ahead and sue USPS based on what I know they’re doing. As an attorney, I would need to represent someone whose legal rights have been violated.
I see three kinds of people who could have standing to sue. First, the father of an unborn child who wanted to keep his baby (or whose baby lives but is in abortion’s crosshairs) could probably sue. A U.S. Supreme Court decision from the late 1970s held that fathers couldn’t sue because of Roe. But now that Roe is gone, that decision should not be binding anymore.
Second, a mother who took the abortion pills that USPS delivered to her and was injured by them could possibly sue. Since she was “injured” by the “wrongful act” of USPS, and since Alabama tort law would hold USPS accountable, she may be able to sue.
Finally, it’s possible that pro-life doctors could sue on behalf of their patients. Before Dobbs, doctors routinely sued on behalf of their patients to get pro-life laws struck down. Since the Supreme Court never overruled that approach to standing, perhaps pro-life doctors could sue on behalf of their patients to protect them from these harmful abortion pills.
This suit’s objective would not necessarily be to punish USPS but to get them to stop shipping abortion pills into Alabama. I think there’s a good case that such a suit can work. But it will require someone with standing to step up and fight for the unborn.
It will take courage.
But it will save lives.
Who’s in?
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
Don't miss out! Subscribe to our newsletter and get our top stories every weekday morning.
