On behalf of the Ethics and Public Policy Center (where I work), I have submitted an amicus brief in FDA v. Alliance for Hippocratic Medicine, which will be argued in the Supreme Court on March 26. The case involves challenges to a series of FDA actions approving the abortion drug mifepristone and loosening conditions on its use. My amicus brief addresses the subsidiary question whether the FDA’s actions violate federal criminal statutes (often referred to as Comstock Act provisions) that broadly bar sending abortion drugs by U.S. mail or common carrier.
Here is the summary of argument in my brief (with some citations omitted):
As the district court correctly determined, the Comstock Act, 18 U.S.C. §§ 1461-1462, broadly prohibits sending abortion drugs by mail or by common carrier, whether for lawful or unlawful abortions. In ruling that the FDA’s 2021 Non-Enforcement Decision likely violated the Administrative Procedure Act, the Fifth Circuit found it unnecessary to address whether that decision also violates the Comstock Act. In his concurring opinion, Judge James C. Ho explained that it does.
In its emergency application for a stay last year, the FDA claimed that “the Comstock Act does not prohibit the mailing of mifepristone for lawful abortions.” As support for its conclusion, the FDA cited and recited a recent opinion by the Office of Legal Counsel in the U.S. Department of Justice. But that OLC opinion is irredeemably flawed.
Although the FDA does not repeat its Comstock Act claim in its opening brief, it has not expressly abandoned it. If the Court reaches the question whether the FDA’s 2021 Non-Enforcement Decision violated the Comstock Act, it should reject the FDA’s position.