Case: 23-10362 Document: 543-1 Page: 86 Date Filed: 08/16/2023
Next, the FDA claims that the Comstock Act prohibits sending abortifacients only when they are used in violation of state law. To support this theory, it relies on a handful of early twentieth century cases outside our circuit. See Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions, 46 Op. O.L.C. _, _ (Dec. 23, 2022) (collecting cases).
But the earliest case it cites, Bours v. United States, 229 F. 960 (7th Cir. 1915), rejects the FDA’s position. Bours says that “it is immaterial what the local statutory definition of abortion is, what acts of abortion are included, or what excluded.” Id. at 964. Rather, “the word ‘abortion’ in the national statute must be taken in its general medical sense.” Id. And “[i]ts inclusion in the statute governing the use of the mails indicates a national policy of discountenancing abortion as inimical to the national life.” Id. Under Bours, the Act’s definition of “abortion” excludes “operation[s]” that are necessary to “save [the mother’s] life.” Id. But anyone who uses the mails to “destroy[] life” violates the statute. Id.
So the FDA can’t invoke the prior-construction canon. Under that canon, legislative reenactment of a statute can, under certain conditions, effectively ratify preexisting, authoritative judicial interpretation of that statute. But the canon requires robust judicial consensus, such as “uniform holdings of lower courts.” Scalia & Garner, supra, at 324. See, e.g., Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 330 (2015) (quoting Bragdon v. Abbott, 524 U.S. 624, 645 (1998)) (canon applies when “judicial interpretations have settled the meaning of an existing statutory provision”) (emphasis added); Tex. Dep’t of Housing & Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 536 (2015) (“Congress accepted and ratified the unanimous holdings of the Courts of Appeals.”) (emphasis added). The FDA can claim no such consensus here. To the contrary, the circuits were at best split. Bours rejects the FDA’s reading of the statute.
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