Case: 23-10362 Document: 543-1 Page: 88 Date Filed: 08/16/2023
Congress also had the opportunity to remove “abortion” from the Comstock Act altogether. See Comstock Cleanup Act of 1996, H.R. 3057, 104th Cong. (1996). See also 142 Cong. Rec. 24313, 24313 (Sep. 24, 1996) (statement of Rep. Pat Schroeder, sponsor of H.R. 3057) (“[T]he Comstock Act has never been repealed; it is still on the books.”); id. at 24313–14 (“[T]his body just allowed the Comstock Act to be enforced on the Internet vis-à-vis anything doing with abortion. … The Telecommunications Act passed this year extended the Comstock Act’s prohibitions to anyone who uses an interactive computer service.”). But again, Congress declined to remove “abortion” from the statute. To the contrary, it chose to repeal only the Act’s prohibition on the shipment of contraceptives. See Pub. L. No. 91662, §§ 3–4, 84 Stat. 1973, 1973 (1971).
So if the FDA wants us to look to the post-enactment history of the Comstock Act rather than its text, that history only reinforces the natural reading of the text. I would set aside the 2021 Mail-Order Decision because it violates the Comstock Act.
V.
In this appeal, neither the FDA nor Danco is content to simply argue that the district court erred. They disparage the ruling as “an unprecedented judicial assault on a careful regulatory process.” The “non-expert” district court issued an “unprecedented order countermanding the scientific judgment of the Food and Drug Administration.”
Their message is simple: The scientists at the FDA can do no wrong. So courts have no business reviewing their actions.
That’s mistaken on multiple levels.
To begin with, Congress has directed the judiciary to review the legality of regulatory action by the FDA, no less than with other agencies.
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