Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 38 of 67 PageID 4460
Amendment, 17 St. Mary’s L.J. 29, 33 (1985) (explaining that thirty of thirty-seven states had statutory abortion prohibitions in 1868 — just five years before Congress enacted the Comstock Act).
Defendants maintain “the legality of the agency actions needs to be judged at the time of the decision, all of which occurred when Roe and Casey were still good law.” ECF No. 136 at 109. Even assuming that is true in all cases, Roe did not prohibit all restrictions on abortions. And it is not obvious that enforcement of the Comstock Act post-Casey would have necessarily run afoul of Casey’s “arbitrary ‘undue burden’ test.” Dobbs, 142 S. Ct. at 2266. Therefore, there is no reason why the Act should not have at least been considered. In any case, the Comstock Act plainly forecloses mail-order abortion in the present, and Defendants have stated no present or future intention of complying with the law. Defendants cannot immunize the illegality of their actions by pointing to a small window in the past where those actions might have been legal.
In sum, the reenactment canon is inapplicable here because the law is plain. Even if that were not true, the cases relied on in the OLC Memo do not support Defendants’ interpretation. And even if they did, a small handful of cases cannot constitute the “broad and unquestioned” consensus required under the reenactment canon. Therefore, Plaintiffs have a substantial likelihood of prevailing on their claim that Defendants’ decision to allow the dispensing of chemical abortion drugs through mail violates unambiguous federal criminal law.
- 2. FDA’s 2021 Actions violate the Administrative Procedure Act
Because FDA’s 2021 Actions violate the Comstock Act, they are “otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Additionally, the actions were likely “arbitrary and capricious.” Id. FDA relied on FDA Adverse Event Reporting System data despite the agency’s 2016 decision to eliminate the requirement for abortionists to report non-fatal “adverse events.”
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