Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 36 of 67 PageID 4458
prohibit mailing drugs “intended by the offender … to be used to produce an illegal abortion.” See Rep. of the Subcomm. on Crim. Just., 95th Cong., Rep. on Recodification of Fed. Crim. Law 40 (Comm. Print 1978) (emphasis added); Bostock, 140 S. Ct. at 1824 (Kavanaugh, J., dissenting) (“In the face of the unsuccessful legislative efforts … judges may not rewrite the law simply because of their own policy views.”).[1] In fact, the House Subcommittee Report on the proposed amendment acknowledged the plain meaning of the statute: “[U]nder current law, the offender commits an offense whenever he ‘knowingly’ mails any of the designated abortion materials,” and the proposed amendment would “require proof that the offender specifically intended that the mailed materials be used to produce an illegal abortion.”[2] If Congress believed the statute already contained the “intentionality” requirement gloss in prior reenactments, there is little reason why Congress would amend the provision to include that requirement.
Defendants aver Plaintiffs’ interpretation of the Comstock Act is foreclosed by the Food and Drug Administration Amendments Act of 2007 (“FDAAA”) for one reason: “Congress was well aware that it was directing mifepristone’s preexisting distribution scheme to continue” in enacting the FDAAA. ECF No. 28 at 40. But neither “critics [of FDA’s 2000 Approval of mifepristone] nor anyone else in the congressional debate mentioned the Comstock Act.” OLC Memo at *7 n.18; see also In re Lively, 717 F.3d 406, 410 (5th Cir. 2013) (“Repeals by implication are disfavored and will not be presumed unless the legislature’s intent is ‘clear and manifest.’”) (internal marks omitted). Because the Comstock Act is not even implicitly mentioned
- ↑ Bostock’s majority opinion warns that “speculation about why a later Congress declined to adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt.” 140 S. Ct. at 1747. But the opinion does not suggest judges can “rewrite the law.” Instead, Bostock’s stated rationale was that the disputed term was implicit in the statutory text all along. No such “textualist” analysis could plausibly justify Defendants’ interpretation of the Comstock Act, and Defendants offer none.
- ↑ Rep. of the Subcomm. on Crim. Just., 95th Cong., Rep. on Recodification of Fed. Crim. Law 40 (Comm. Print 1978) (emphasis added).
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