Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 34 of 67 PageID 4456
The canon is easily overcome for one simple reason: it is a dubious means of ascertaining congressional intent. “There are plenty of reasons to reenact a statute that have nothing to do with codifying the glosses that courts have already put on the statute.” Caleb Nelson, Statutory Interpretation 481 (2011). For example, perhaps the original statute contained a “sunset” provision. Maybe Congress wanted to change the statute in some other respects but found it easier to communicate those changes by reenacting a modified version of the complete statute “than by casting each discrete change as an amendment to the existing language.” Id. at n.14. Or Congress was perhaps conducting “a more general codification or reorganization of the statutes in a particular field, for the sake of making the structure of its statutes easier to follow.” Id. “Or maybe Congress simply wanted to enact the relevant title of the United States Code into positive law.” Id. “To the extent that Congress reenacts statutory language for one of those other reasons, members of Congress may well not mean to be expressing any view at all about the glosses that have piled up in the meantime.” Id.; see also Henry M. Hart, jr., & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1367 (William N. Eskridge, Jr., & Philip P. Frickey eds., 1994) (tent. ed. 1958) (criticizing the canon for adding to the costs of the legislative process in counterproductive ways).
Here, the plain text of the Comstock Act controls. See Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731, 1749 (2020) (“[W]hen the meaning of the statute’s terms is plain, our job is at an end.”); Lawson v. FMR LLC, 571 U.S. 429, 441 (2014) (“Absent any textual qualification, we presume the operative language means what it appears to mean.”). The Comstock Act declares “nonmailable” every “article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.” 18 U.S.C. § 1461 (emphasis added). It is indisputable that chemical abortion drugs are both
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