Case: 23-10362 Document: 543-1 Page: 65 Date Filed: 08/16/2023
Perhaps the FDA could have approved mifepristone through some other regulatory process. But established precedent requires us to review the FDA’s action based on the path it took—not the path it might have taken. See SEC v. Chenery Corp., 318 U.S. 80, 95 (1943); DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1909 (2020) (“An agency must defend its actions based on the reasons it gave when it acted.”).
The FDA’s 2021 revisions also violate the Comstock Act. That Act makes it a federal crime to mail any “article or thing designed … or intended for producing abortion,” as well as any “drug, medicine, or thing … advertised … in a manner calculated to lead another to use … it for producing abortion.” 18 U.S.C. § 1461. It also makes it a crime to “use[] … [an] express company” to ship a “drug, medicine, article, or thing designed … or intended for producing abortion.” 18 U.S.C. § 1462.
So I would affirm the district court. Accordingly, I concur in part and dissent in part.
I.
I agree with the thorough and well-reasoned panel majority opinion that Plaintiffs have demonstrated Article III standing to challenge both the FDA’s 2000 approval of mifepristone and the 2016 and 2021 revisions. I write separately to elaborate on the historical pedigree of Plaintiffs’ conscience injury, and to explore how Plaintiffs suffer aesthetic injury as well.
A.
The Supreme Court has instructed that we look to “history and tradition” as “a meaningful guide to the types of cases that Article III empowers federal courts to consider.” United States v. Texas, 143 S. Ct. 1964, 1970 (2023) (quoting Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269, 274 (2008)). We ask whether the “injury to the plaintiff has a
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