to ban the sending by mail of pornography, contraceptives, and “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.”Circuit opinion made several strong statements about the Comstock Act’s application to mifepristone, including the mental state required by that law , the quality of an Office of Legal Counsel memo about the act , and the importance of complying with the act’s plain text it does every time it ships mifepristone”).
Critically, the majority opinion cites only the Administrative Procedure Act to support Kacsmaryk’s ruling about the mailing of mifepristone, arguing that the FDA’s 2016 rule allowing the drug to be prescribed through the mail failed to comply with that law. In a footnote, it states: “Given this holding, we do not consider the Medical Organizations and Doctors’ independent argument that the 2021 Non-Enforcement Decision violates the Comstock Act of 1873.”That’s a big concession.
Trump appointee James C. Ho concurred in part and dissented in part. His opinion addresses the Comstock Act headlong—quoting the motion panel’s opinion in this case—to argue that its plain terms require acceptance of Kacsmaryk’s ruling about delivery of mifepristone by mail.Still, even with that concession about the Comstock Act by the panel majority, the Supreme Court may well reverse the 5