The judges agreed with Kacsmayk that the 1873 Comstock Act, an “anti-vice” law that has been dormant since the Supreme Court’s Griswold decision in the 1960s, applied here. That 19th-century law prohibited the distribution of contraceptives, “lewd” writings, and any “instrument, substance, drug, medicine or thing” that could be used in an abortion.
“To the extent the Comstock Act introduces uncertainty into the ultimate merits of the case, that uncertainty favors the plaintiffs,” the court said, writing that “merely by knowingly making use of the mail for a prohibited abortion item” violates the outdated law.
An 18th-century law thus overrides the 21st-century determinations of the FDA. The appeals court’s application of this law is also flawed in imposing the ban on states where abortion is legal. As the Department of Justice argued in a recent memo, the act prohibits mailing the pills only if the sender knows they would be used for an illegal abortion, not a legal one in states where abortion is legal.
The judges made very clear that they are with forced birth extremist Kacsmaryk and the anti-abortion plaintiffs, echoing the totally unscientific language of abortion opponents in calling medication abortion “chemical abortion” and referring to an embryo as “an unborn child.” The judges agreed with the plaintiffs’ assertion that the drug is unsafe, causing “cramping, heavy bleeding and severe pain,” and said that the FDA “cannot deny that serious complications from mifepristone” are possible, raising the question of whether they know what happens in pregnancy and childbirth.
They also took issue with the FDA’s argument that they drug is comparable in safety to ibuprofen. “FDA’s own documents show that mifepristone bears no resemblance to ibuprofen,” the court said, which was not the point the FDA made in that comparison. Because no one would take ibuprofen for an abortion or mifepristone for a headache.
The judges also swept aside the Department of Justice’s argument on whether the plaintiffs had any business bringing the suit in the first place by lying about it. They said that “as a result of FDA’s failure to regulate this potent drug, these doctors have had to devote significant time and resources to caring for women experiencing mifepristone’s harmful effects. This harm is sufficiently concrete.” They added that the plaintiffs “also face an injury from the irreconcilable choice between performing their jobs and abiding by their consciences.”
But the doctors bringing the suit, the DOJ pointed out, didn’t prescribe the drug and were arguing that the harm was that they might someday be faced with treating a patient having dangerous side effects from it. The DOJ argued in their brief to the appellate court that that’s pure speculation “that other doctors will prescribe mifepristone; that those doctors’ patients will experience exceedingly rare serious adverse events; that those patients will then seek out plaintiffs—doctors who oppose mifepristone and abortion—for care; and that they will do so in sufficient numbers to burden plaintiffs’ medical practice.”
Which, by the way, is a doctor’s job. To treat patients no matter what causes their symptoms.
The Biden administration will certainly appeal the decision to the U.S. Supreme Court. The issue is complicated by another conflicting ruling from Judge Thomas O. Rice in the Eastern District of Washington issued the same day as Kacsmaryk’s decision.
Rice ruled for 17 Democratic state attorneys general who challenged FDA restrictions that they say are onerous on the drug. Those restrictions include forcing providers to receive a special certification to prescribe the drug and requiring an extensive paper trail that exposes both patients and providers to privacy and security risks.
The Department of Justice asked Rice to clarify his ruling in light of the Kacsmaryk, and now 5th Circuit, decisions saying that there “appears to be in significant tension” with the opinion of the Texas judge.
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On today’s episode, Markos and Kerry are joined by a friend of the podcast, Democratic political strategist Simon Rosenberg. Rosenberg was one of the few outsiders who, like Daily Kos, kept telling the world that nothing supported the idea of a red wave. Simon and the crew break down his strategy for Democratic candidates to achieve a 55% popular vote in all elections—a number that a few years ago would have seemed unattainable, but now feels within reach.
