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What will happen to abortion-pills-by-mail and the people who use them if Donald Trump is elected in November? As the accounts of the regional USPIS head and FOIA documents show, a piecemeal crackdown is already underway during a Democratic administration. Under a Trump regime, things might go much further.

Whoever is in power, the incident in Jackson provides a potential window into the future — one in which freelancing local Postal Service employees and officials can call on local cops to halt women from accessing reproductive care and potentially charge and arrest those providing or using abortion medication.

My FOIA request asked for records from past years of investigations of people who’d used the mail to send pills. The documents I got back show how a willing administration might go after distributors. The feds could even lend support to police in states that have criminalized abortion care as they pursue cases under local laws. Pregnant people who order the medications could get caught in the dragnet.

The documents I received after my FOIA request are highly redacted but still reveal many details about a federal investigation that began less than two years ago in Mississippi. Dozens of envelopes with abortion pills were seized. The bust followed on the heels of the Supreme Court overturning Roe v. Wade, and came after a group of anti-abortion doctors filed a federal lawsuit in Texas, arguing that abortion pills should be banned from the mail.

The Jackson investigation apparently also employed what’s called a mail cover: a little-known Postal Service method for collecting data about people suspected of committing crimes. Using an enormous database of images of the outside of envelopes and packages, postal inspectors can digitally compare names, addresses, and other information on one item to others. And the findings can be freely shared with almost any law enforcement agency that requests them. The return address for the hot pink envelope in Jackson included an unused post office box number, the sort of information postal inspectors can use to correlate parcels to each other.

Reproductive justice activist Laurie Bertram Roberts worries about an anti-abortion regime taking power. They direct the Jackson-based Mississippi Reproductive Freedom Fund, which assists fellow Mississippians with any reproductive decision they make, from having a baby, to leaving the state to go to an abortion clinic, to using pills at home.

In a state where abortion is strictly banned post-Roe, Bertram Roberts is also a doula. Along with other doulas, they have organized help for people at the end of their pregnancies, including those which do not come to term. Whether that end is due miscarriage or to abortion is immaterial. “We don’t ask,” they said.

The pink-envelope investigation came out of a sort of collaboration between the feds’ regional offices and a local official: U.S postal workers and a city K-9 cop. Though no one in Mississippi has yet been arrested for helping carry out an abortion, Bertram Roberts fears that synergy. They leaned forward and tensed their lips as I opened my computer and pulled up images I’d obtained from the FOIA request: photos the USPIS had taken, in a post office parking lot, of vehicles suspected of belonging to the person who mailed the pills.

Bertram Roberts peered anxiously at the screen. “I don’t recognize them!” they said. Their face relaxed, but they shook their head. “The thing I worry about most is people getting criminalized.”

The USPIS is the investigative arm of the nation’s Postal Service. The agency has known for at least the past decade, according to FOIA documents, that foreign-made abortion pills are entering the U.S. and being distributed in quantity without prescription. FDA regulations hold that this is illegal; the senders can be punished with criminal penalties.

Days after Roe was overturned in June 2022, the USPIS announced that it would not proactively pursue pill mailers, even in states where abortion was being banned.

“We enforce federal law,” USPIS spokesperson Michael Martel told me. “We have no interest in enforcing state laws.”

He said, however, that the USPIS does go after people who import nonapproved pharmaceuticals and those without medical credentials who mail prescription drugs.

The investigations can rely on outside help. USPIS doesn’t have its own sniffer K-9s, so it employs local police dogs and their handlers to check the mail for contraband and provide the probable cause needed to get warrants. The arrangement occurs even in jurisdictions like Mississippi, where abortion is now banned under state law and local cops enforce state law. Steed, the dog handler from a nearby Rankin County police department who responded to the pink envelope in Jackson, was recently deputized as a USPIS investigator, and he uses office space in the agency’s regional headquarters at the Jackson postal center.

Using local dogs creates risk for abortion-seekers. With the post office inviting local law enforcement to assist with federal investigations, local police could theoretically do their own investigations, by copying names and addresses from the mail. And they could pass that information to anti-abortion district attorneys.

Police dogs, however, are trained to smell only the illegal drugs heroin, marijuana, ecstasy, fentanyl, and cocaine, not the ingredients in abortion pills, which currently remain legal. And the K-9s’ forensic reliability is suspect.

Why would a police dog alert on abortion pills in the first place, when they’re not narcotics?

Martel, the USPIS national spokesperson, speculated that the pills found in Jackson were contaminated in the manufacturing process by trace amounts of a drug such as marijuana, or perhaps someone was handling narcotics when they did the packing and left molecules behind that only canines’ super-sensitive noses can detect

Theories along these lines are widespread among police, and they’re inherently impossible to disprove. Elisa Wells, a co-founder and co-director of Plan C, is skeptical. She said her group has conducted laboratory analyses of various brands of foreign-made abortion pills. They’ve all been pure, she said, and no one has ever complained about their containing narcotics.

There is another reason why a K-9 can zero in on a package that’s devoid of illicit drugs. Animal researchers call it “cueing.” Canines are exquisitely sensitive to the minutiae of a human’s posture, eye movements, and other subtle behaviors. Handlers wishing to develop probable cause to do intrusive searches for narcotics can coax their dogs into drug-alerting behavior. To get a reward, the dog will alert, even if nothing illegal is present. (Steed, the K-9 handler, declined to be interviewed for this story.)

Cueing can be deliberate, but it’s more often unconscious. In 2011, Lisa Lit, a researcher at the University of California, Davis, published a now-famous study in which she told the handlers of several police dogs that their K-9s would be searching for “target scents” hidden randomly in several containers. She put red tape on some containers and said it marked the targets. In reality, none of the containers had scents. Even so, most of the dogs alerted on containers, especially those with red tape.

Some policing agencies now require K-9 handlers to wear body cameras to check if they’re cueing their dogs. USPIS, though, doesn’t use body cameras, according to Martin, the former head of the office in Jackson. Chris Picou, a supervising deputy for Rankin County’s drug interdiction units who oversees many Central Mississippi police K-9s, including Steed’s dog Rip, told me in June that he had never heard of the Lit study about cueing.

Lawrence Myers, a retired professor of veterinary medicine at Auburn University with extensive experience researching the reliability of law enforcement dogs and their human handlers, said unacknowledged handler errors in the service of law enforcement can turn K-9s into mere “warrants on a leash.”

Once a warrant is issued and the parcel has been opened, a mail cover can help an investigation barrel forward.

Mail covers have been offered for generations by the U.S. Postal Service. They require neither a warrant nor any other Fourth Amendment control. Even so, they allow law enforcement agencies, from the FBI to local police to the USPIS itself, to collect information from the outside of an envelope or package. Annually, the post office photographs every one of the billions of pieces of mail that it processes. And every year, it approves thousands of requests from law enforcement for mail covers of individuals.

“We tend to think of first-class mail as relatively inviolable. But the outside of the envelope is the equivalent of social media,” said Frederick Lane, an attorney and writer who specializes in tensions between the Fourth Amendment’s guarantee of privacy and cybertechnology’s growing ability to snoop.

Lane, who is writing a book called “The Cybertraps of Choice: Pregnancy and Privacy in a Post-Roe World,” has investigated mail covers. He examined the abortion materials from the Mississippi FOIA request and said they constitute strong evidence that the USPIS got a mail cover from the Postal Service to enlarge its abortion pill investigation. (Martel, the USPIS spokesperson, declined to comment, saying only that the agency routinely withholds information from the public in order to protect its investigations.)

Lane said that using K-9s to alert for narcotics is one of the most common ways that the USPIS obtains warrants to search inside of mailed items, even when investigators don’t really believe they’re looking for narcotics.

Once the inspector got inside of the pink envelope in Jackson, he said, it appears that the USPIS collected data from outside the envelope — likely the unused post office box number in the return address — to locate additional envelopes with pills. The tactic would allow authorities to centralize the search by tracking related materials from disparate post offices as they come together at the Jackson distribution center.

Lane noted the Postal Service started photographing mail and digitizing it years ago to reduce the cost of sorting. After 9/11, and with the development of ever more sophisticated digital photography, the data recovered from one item could be compared with myriad other items and stored on ever-growing databases. These days, the ability to do this work “is growing by leaps and bounds,” Lane said.

“If you start involving local law enforcement in a state that is trying to ban access to abortion, including abortion medication, you are putting patients at risk.”

The information a mail cover extracts is handed over to law enforcement, with virtually no questions asked.

“Mechanisms for the post office helping local cops are in place without any supervision,” Lane said. He called the cooperation between policing agencies and the postal service “a candy store for law enforcement.”

That teamwork potentially threatens abortion rights, according to Nathan Freed Wessler, deputy director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project.

“If you start involving local law enforcement in a state that is trying to ban access to abortion, including abortion medication, you are putting patients at risk,” he told me. “Individuals who are trying to access medical care should not have to fear the federal government coming after them. The specter of harm to people once local law enforcement gets wind of it in a hostile state could be really serious.”

The other potential federal threat to abortion rights is what’s colloquially called the Comstock Act. Passed by Congress in 1873, it has been dormant for decades but remains on the books as 18 U.S. Codes 1461 and 1462. Comstock criminalizes importing and mailing materials which, according to the language of the law, are “intended for producing abortion, or for any indecent or immoral use.”

Among hard-line anti-abortion activists who have Trump’s ear, plans are already afoot to revive the Comstock Act if he wins. Lately, Trump and his vice presidential running mate, Sen. JD Vance, R-Ohio, have been trying to distance themselves from unpopular calls to further restrict abortion. Vance recently said he supports abortion pills being legal, but before entering the race, he was publicly in favor of banning them from the mail.

On Abortion, JD Vance Is the Bridge Between Trump and Project 2025

Vance and other Republican lawmakers last year sent a letter to the Department of Justice asking for the Comstock Act to be enforced and for the department to “shut down all mail-order abortion operations.” In addition, Project 2025, the Heritage Foundation blueprint for turning the country sharply right, calls for using the Comstock Act to ban abortion pills from the mail. Trump and his campaign have also been trying to distance themselves from Project 2025, but Vance complicates matters; he wrote the foreword to a now-delayed book by Heritage chief and project architect Kevin Roberts.

Because the Comstock Act is federal law and the U.S. Postal Service is part of the executive branch, Trump, if he won the upcoming election, could issue an executive order reviving Comstock as early as the first day of his second term. Separately, his attorney general could authorize going after pills in the mail.

“I have absolutely no doubt that under a Trump administration the Postal Service would be required to enforce the Comstock laws against misoprostol and mifepristone.”

“I have absolutely no doubt that under a Trump administration the Postal Service would be required to enforce the Comstock laws against misoprostol and mifepristone,” said Lane, the cyber-privacy expert.

And if Comstock is revived, anyone caught sending abortion pills, even domestically produced brands not currently banned by the FDA, could be charged with a felony. With the pills officially defined as contraband, sniffer dogs could be trained to smell them on their own. Cueing by a handler would no longer be necessary.

And the government might not stop with banning pills. Andrew Beck, a senior staff attorney with the ACLU’s Reproductive Freedom Project, told me that, under Comstock, even clinicians doing surgical abortions in states where they are legal could be cut off from receiving the items they need: “gloves, surgical instruments, and everything else that’s used.”

Comstock could ban them all from being mailed.

Rip, the local police department dog, sniffed the pink envelope in Jackson on December 7, 2022. That same day, even before the USPIS got its warrant to look inside the envelope, the agency impounded 11 more nearly identical packages with the same address that the Postal Service had determined was bogus. The fact that they were impounded so early is evidence, Lane said, that the USPIS was using a mail cover.

December progressed and additional envelopes were seized every few days. They were addressed to recipients throughout the country. The USPIS claimed they were being flagged by employees at a smaller postal service branch in Jackson called LaFleur, but more likely they were identified through a mail cover, according to Lane, then seized when they reached the downtown distribution and processing center.

USPIS said that workers at LaFleur had acted as tipsters. LaFleur branch manager Fenton Stevens, however, told me that he had no recollection of workers reporting envelopes suspected of containing abortion pills.

“How could somebody know if abortion pills are in a package?” he asked, incredulously. “That’s not something we do. We don’t indulge in things like that.”

The USPIS also photographed vehicles presumably driven by the person doing the mailing — the photos Laurie Bertram Roberts later checked out. The case was eventually sent to the federal prosecutor’s office for the Southern District of Mississippi, in downtown Jackson. An assistant U.S. attorney was assigned to handle it.

By December 20, over seven dozen envelopes had been seized. Then, two days before Christmas, the Office of Legal Counsel for the Department of Justice issued an opinion implying physicians and other clinicians who mail prescription abortion pills into states where abortion is illegal could not be prosecuted under the Comstock Act.

The Justice Department’s reasoning was that the pills are used for several medical purposes besides abortion, to manage miscarriages, for instance. Thus, the government cannot know in any given case whether a mailer’s intention is to break the law. (The opinion still leaves mutual aid activists and other non-clinicians susceptible to being charged with crimes.)

In Jackson, a few more envelopes, the final seven, were impounded on January 6. That date marked one month since Rip had sniffed the first pink envelope and the USPIS initiated its investigation. A mail cover is permitted to last for one month before it must either be renewed or ended. After that final day, seizures of pills in Jackson ceased.

No one has since been indicted, and Martel, the USPIS spokesperson, declined to say if the case is still open.

Martin, the retired inspector, said it’s closed.

“The U.S. attorney’s office in Jackson is a very good office,” he said, “very aggressive.” But he guessed that “the political climate,” as he put it, made a prosecution for abortion pills “a hot topic nobody wanted to touch.”

Nobody, that is, under the pro-abortion-rights Biden administration. In the meantime, thanks to a Jackson-based postal worker, Rip the dog, and a federal agency that says it has no desire to police abortion, nearly 100 pregnant people did not receive little pink packages containing the medicine they requested.

Original article: theintercept.com