Over at Balkinization, Reva Siegel (Yale Law School) and Mary Ziegler (UC Davis School of Law) report that they "have just posted Comstockery on SSRN, the first legal history of the Comstock Act since the antiabortion movement began arguing for reviving enforcement of the law in the wake of Dobbs v. Jackson Women’s Health Organization."
The posting is timely. They explain:
On March 26, Food and Drug Administration v. Alliance for Hippocratic Medicine will return to the Supreme Court. Representing the Alliance, the Alliance Defending Freedom (ADF), a leader of the Christian legal movement that has played key roles in 15 Supreme Court cases, including Dobbs and 303 Creative v. Elenis, has challenged the FDA’s authority to approve mifepristone, a drug used in more than half of all abortions, under the relevant laws and regulations. ADF has further sought to overturn several subsequent FDA decisions, including one in 2021 permitting the use of telehealth for medication abortion. In the case now before the Court, ADF argues that the removal of an in-person-visitation requirement was arbitrary and capricious under the APA. ADF also makes a Comstock claim against the 2021 modification, asserting that the plain meaning of the statute bars the mailing of any abortion-related article. This argument has received attention from conservative judges, including Judge James Ho of the Fifth Circuit; in the district court, Judge Matthew Kacsmaryk granted a motion for preliminary injunction in the spring of 2023 that would have withdrawn the approval of mifepristone, reasoning that the statute plainly declares “nonmailable” anything “advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.”
The authors' Balkinization post continues here. The full article is available here, at SSRN.
-- Karen Tani
