Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 35 of 67 PageID 4457
“drug[s]” and are “for producing abortion.” Therefore, federal criminal law declares they are “nonmailable.” See Texas v. Becerra, No. 5:22-CV-185-H, 2022 WL 3639525, at *26 n.21 (N.D. Tex. Aug. 23, 2022) (“[F]ederal law bar[s] the importation or delivery of any device or medicine designed to produce an abortion.”).
The statute plainly does not require intent on the part of the seller that the drugs be used “unlawfully.” To be sure, the statute does contain a catch-all provision that prohibits the mailing of such things “for producing abortion, or for any indecent or immoral purpose.” 18 U.S.C. § 1461 (emphasis added). But “or” is “almost always disjunctive.” Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018) (internal marks omitted). Additionally, the “or” in Section 1461 is preceded by a comma, further disjoining the list of nonmailable matter. Thus, the Court does not read the “or” as an “and.” Similarly, the Act requires that the defendant “knowingly uses the mails for the mailing” of anything declared by the Act “to be nonmailable.” 18 U.S.C. § 1461. A defendant could satisfy this mens rea requirement by mailing mifepristone and knowing it is for producing abortion. The statute does not require anything more. See, e.g., United States v. Lamott, 831 F.3d 1153, 1157 (9th Cir. 2016) (where Congress “intends to legislate a specific intent crime,” the statute typically uses the phrase “with the intent to”) (internal marks omitted).
Even if the statute were ambiguous, the legislative history also supports this interpretation.[1] See H.R. Rep. No. 91-1105, at 2 (1970) (“Existing statutes completely prohibit the importation, interstate transportation, and mailing of contraceptive materials, or the mailing of advertisement or information concerning how or where such contraceptives may be obtained or how conception may be prevented.”). Congress unsuccessfully tried to modify Section 1461 to
- ↑ This Court reviews the legislative history as mere evidence of the ordinary public meaning of the current statutory language. See Antonin Scalia, A Matter of Interpretation 17 (1997) (“It is the law that governs, not the intent of the lawgiver … Men may intend what they will; but it is only the laws that they enact which bind us.”).
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