Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 37 of 67 PageID 4459
in the FDAAA’s enactment, there is no repeal by implication. And in any case, Defendants’ arguments based on legislative history cannot overcome clear statutory text.
Consequently, reenactment of the Comstock Act does not constitute an adoption of prior constructions because “the law is plain.” Brown, 513 U.S. at 121 (1994). Even if that were not the case, the reenactment canon does not apply here because the relevant judicial glosses do not represent a “broad and unquestioned” consensus. Jama, 543 U.S. at 349. Defendants rely heavily on the OLC Memo that purports to establish this “consensus.” But none of the cases cited in the OLC Memo support the view that the Comstock Act bars the mailing of abortion drugs only when the sender has the specific intent that the drugs be used unlawfully.
On the contrary, the Seventh Circuit reasoned that the word “abortion” in the context of the Act indicates “a national policy of discountenancing abortion as inimical to the national life.” Bours, 229 F. at 964. Bours further declared “it is immaterial what the local statutory definition of abortion is, what acts of abortion are included, or what excluded.” Id. Similarly, the Sixth Circuit’s decision in Davis v. United States only suggests that legitimate uses of drugs should not fall within the scope of the statute “merely because they are capable of illegal uses.” 62 F.2d 473, 474 (6th Cir. 1933). In other words, the Davis holding reflects the position that legitimate uses — uses beyond the purposes the statute condemns — should be excluded from the scope of the statute, not that whatever uses are lawful under state law should be. ECF No. 114 at 10. Likewise, the Second Circuit interpreted the statute to embrace articles the 1873 Congress “would have denounced as immoral if it had understood all the conditions under which they were to be used.” United States v. One Package, 86 F.2d 737, 739 (2d Cir. 1936). The court further observed that “[t]he word ‘unlawful’ would make this clear as to articles for producing abortion.” Id.; see also James S. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth
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