Of Hayek, abortion, and opioids

Governments take conflicting positions on the responsibility of drug manufacturers and distributors for the end use of their products.

F.A. Hayek defined the rule of law as government rules being known in advance and applied the same to all actors.

In terms of civil governance, there’s obviously much more to the rule of law than that. But, with respect to a competitive market economy, there’s much wisdom and productivity in Hayek’s dictum.

Hayek’s dictum came to mind when reading a recent opinion by the federal Department of Justice regarding sending through the mail a couple of prescription drugs that, taken together, can induce an abortion. Federal law forbids using the mail to transport abortion-related material.

Nevertheless, the department opined that it is legal to use the mail to transport these two prescription drugs provided the sender “lacks the intent that those items should be used unlawfully.”

After Dobbs, there will be states that ban at-home, chemically-induced abortions using these drugs. According to the opinion, it would be lawful to use the mail to send the drugs even to a recipient in such states. There are other medical uses of the drugs, the opinion notes. And even if the recipient uses them to induce an abortion, the recipient might take them to another state in which their use would be legal. Absent the “intent” that the drugs be used unlawfully, the sender is in the clear, according to the opinion.

In other words, if there is a legal prescription and the sender doesn’t intend for the drugs to be used unlawfully, the sender has no responsibility or liability for the end use of the drugs, at least with respect to this law.

Contrast that with the position the federal government, and many state and local governments, have taken with respect to opioids. Unlike the abortion drugs, the use of prescription opioids is legal in every state. Nevertheless, governments are claiming that opioid manufacturers and distributors are liable for harm caused by opioid overuse, even if they were only supplying and filling legal prescriptions. Billions have already been obtained in settlements and additional lawsuits are pending.

So, manufacturers and distributors of prescribed abortion-inducing drugs are off the hook even if shipping them into a state in which their foreseeable use is illegal. But manufacturers and distributors of opioids have to cough up billions for filling legal prescriptions because of the claim that damaging overuse was foreseeable.

Now, obviously politics explains the difference. The Biden administration wants to use the power of the federal government to preserve, post-Dobbs, the availability of abortion to the maximum extent possible. Thus the logical contortions of the DoJ opinion to permit the Postal Service to transport abortion-inducing drugs even into states where at-home, chemical abortions are illegal.

In the case of opioids, the political incentive is to appear to hold someone accountable for the devastating effects of overuse. The drug manufacturers and big pharmacies have deep pockets and little public sympathy. They are ripe to be saddled with the blame and shaken down for some cash, which flows principally to the governments bringing the cases, not to the victims of the overuse.

Which brings us back to Hayek.

According to Hayek’s rule of law, the responsibility government is going to impose on a manufacturer and distributor of a legally prescribed drug for its end use should be known and articulated in advance. And should apply irrespective of whether the drug is to induce an abortion or ameliorate pain.

This is a small illustration of a much bigger problem. Contrary to Hayek’s dictum, government policy with respect to economic actors is often, in fact I would argue usually, ad hoc and post hoc. Rather than something fixed and known, it has become a major, incalculable risk for private sector providers. It weighs heavily on the economy.

In democratic governance, there is supposed to be flux and change. Hayek’s dictum is an impossible pure state. But, within the flux and change, the value of the dictum as a guiding principle shouldn’t be as casually cast aside or ignored as it is in today’s political economy.

Reach Robb at robtrobb@gmail.com.