Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 18 of 67 PageID 4440
no presumption against judicial review and in favor of administrative absolutism unless that purpose is fairly discernible in the statutory scheme.” Camp, 397 U.S. at 157 (internal marks omitted); see also Barlow v. Collins, 397 U.S. 159, 165 (1970) (courts “must decide if Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion”).
Defendants argue that Plaintiffs identify no particular provision of the FFDCA protecting their interests. ECF No. 28 at 26. But Plaintiffs’ interests are not “marginally related” to the purposes implicit in the FFDCA. The statute’s substantive provisions protect the safety of physicians’ patients and the integrity of the physician-patient relationship. See generally 21 U.S.C. § 355. Furthermore, this Court finds Plaintiffs have third-party standing on behalf of their patients. Plaintiffs’ patients are within the zone of interest of the FFDCA because patients seek safe and effective medical procedures.
Likewise, Plaintiffs are within the zone of interests of the Comstock Act. This statute “indicates a national policy of discountenancing abortion as inimical to the national life.” Bours v. United States, 229 F. 960, 964 (7th Cir. 1915); see also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n.19 (1983) (the “thrust” of the Comstock Act was “to prevent the mails from being used to corrupt the public morals”). There is no evidence that Congress “sought to preclude judicial review of administrative rulings” by FDA “as to the legitimate scope of activities” available concerning chemical abortion drugs under these statutes. Camp, 397 U.S. at 157. For all the aforementioned reasons, Plaintiffs have standing.
- B. Plaintiffs’ Claims Are Reviewable
Defendants aver that “[a]ll of Plaintiffs’ claims are untimely or unexhausted except their challenge to FDA’s December 16, 2021, response to the 2019 citizen petition.” ECF No. 28 at 26.
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