Case: 23-10362 Document: 543-1 Page: 87 Date Filed: 08/16/2023
And the amicus brief from the Ethics and Public Policy Center puts forth a strong argument that no circuit court adopted the FDA’s reading.
What’s more, Congress certainly knew how to prohibit only those abortifacients used to violate state law. The Tariff Act of 1930, for example, prohibits all persons “from importing … any drug or medicine or any article whatever for causing unlawful abortion.” 19 U.S.C. § 1305 (emphasis added). See also Act of June 17, 1930, ch. 497, tit. III, § 305, 46 Stat. 590, 688 (same). In response, the FDA suggests that it would be irrational for Congress to target all abortions in the Comstock Act, but only unlawful abortions in the Tariff Act. But different Congresses can reach different judgments about how to regulate abortion in different contexts. There’s nothing irrational about the Congress that enacted the Comstock Act in 1873 making a different judgment from the Congress that enacted the Tariff Act decades later.
Moreover, Congress has actually considered amending the Comstock Act to apply only to “illegal abortions”—and chosen not to. In 1978, Congress rejected a proposed Comstock Act amendment to prohibit the shipment of “any drug, medicine, article, or thing, with the intent that such drug, medicine, article, or thing be used to produce an illegal abortion.” H.R. 13959, 95th Cong. § 6702(1)(C)(i) (1978) (emphasis added). See also id. 6701(a)(2) (same). A contemporaneous Congressional report explained:
[R]evised title 18 changes current law by requiring proof that the relevant material or object to be used to produce an illegal abortion and that the offender specifically intended the material object to be so used. … [A]n abortion is “illegal” if it is contrary to the law of the state in which the abortion is performed.
Report of the Subcommittee on Criminal Justice on Recodification of Federal Criminal Law, H.R. Rep. No. 95-29, pt. 3, at 42 (1978) (emphasis added).
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