Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 32 of 67 PageID 4454
- C. Plaintiffs’ Challenges to FDA’s 2021 Actions Have a Substantial Likelihood of Success on the Merits
“To satisfy the first element of likelihood of success on the merits,” Plaintiffs “must present a prima facie case but need not show that [they are] certain to win.” Janvey v. Alguire, 647 F.3d 585, 595–96 (5th Cir. 2011) (internal marks omitted). Under the APA, courts must “hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A) & (C).
The Court will first address FDA’s 2021 Actions that eliminated the in-person dispensing requirement and announced that FDA would allow abortionists to dispense chemical abortion drugs by mail or mail-order pharmacy. Plaintiffs have a substantial likelihood of success on their claims that these actions violate federal law.
- 1. The Comstock Act prohibits the Mailing of Chemical Abortion Drugs
The Comstock Act declares “[e]very obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance” to be “nonmailable matter” that “shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” 18 U.S.C. § 1461. The next clauses declare nonmailable “[e]very article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; 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, or for any indecent or immoral purpose.” Id. Similarly, Section 1462 forbids the use of “any express company or other common carrier” to transport chemical abortion drugs “in interstate or foreign commerce.”
Defendants’ argument that the Comstock Act does not prohibit the mailing of chemical abortion drugs relies on the “reenactment canon.” That is, courts may distill a statute’s meaning
32
