Case: 23-10362 Document: 543-1 Page: 83 Date Filed: 08/16/2023
explanation for its decision that runs counter to the evidence before the agency” in 2021. State Farm, 463 U.S. at 43. The agency thus acted arbitrarily in violation of the APA.
I write separately to add that the 2021 revisions violate the Comstock Act, 18 U.S.C. §§ 1461–62, and are “not in accordance with law” for that reason as well. 5 U.S.C. § 706(2)(A).
A.
The text of the Comstock Act prohibits the mailing of abortifacient drugs:
Every article or thing designed, adapted, or intended for producing abortion … and [e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion … [i]s declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section … to be nonmailable … shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.
18 U.S.C. § 1461. This language derives from the original 1873 Comstock Act. See Act of Mar. 3, 1873, ch. 258, § 2, 17 Stat. 598, 599 (“No … article or thing designed or intended for the … procuring of abortion … shall be carried in the mail.”).
Congress later extended the mailing prohibition to cover common carriers as well. See Act of Feb. 8, 1897, ch. 172, 29 Stat. 512, 512 (“[I]t shall be unlawful for any person to deposit with any express company or other
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