Justice Samuel Alito, dissenting, has proven Boston College law and theology professor Cathleen Kaveny to have been prescient. She wrote in Commonweal that the Opinion for the Court in Dobbs v. Jackson Women’s Health would bring division, not resolution. A state by state battle was invited by the Dobbs decision. But, as I have discussed , the fetal personhood argument has a bright future. Alito said as much in Dobbs - that an absolute abortion ban (except to save the life of the mother, presumably) would be subject to soft `rational basis' review.
The Supreme Court has stayed pending appeal the order of Amarillo, Texas-based U.S. District Judge Matthew J. Kacsmaryk. He declared void the FDA grant of permission to market the abortifacient drug mifeppristone. One element that remains unresolved is the status of the Comstock Act of 1873, 18 USC 1461. It bars the mailing of obscene materials, and included in its prohibitions anything that would produce an abortion. It is under that act that birth control crusader and Planned Parenthood founder Margaret Sanger was charged, as Michelle Goldberg writes today.
But two prominent scholars Adrian Vermeule of Harvard and the young Irish scholar Conor Casey defend the opinion of Judge Kacsmaryk that the Comstock Act makes mailing an abortifacient drug a violation of federal law. Vermeule and Casey, in an essay titled Natural Administrative Law on the Post Liberal blog on April 12 say that the Comstock Act should be enforced according to its plain terms - that it means just what it says:
“Every article or thing
designed, adapted, or intended for producing abortion, or for
any indecent or immoral use;” and
* “Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose.”
Vermeule and Casey explain:
- Our point is simple. The Comstock Act, as relevant here, is positive
legislation that implements and supports a fundamental precept of natural
law: abortion is an intrinsic evil, the intentional killing of an unborn
child. As such the court’s interpretation of the Act is fully consonant
with background principles of higher law, which inhere within the semantic
meaning of the Act. Conversely, FDA’s interpretation squarely violates the
Act, whose plain meaning tracks and implements the natural law, and thus transgresses
even the generous deference for administrative determination of positive
law that is recognized by the classical legal framework.
- Indeed, in principle, the Comstock Act should be construed
generously, not narrowly, in order to promote its remedial purposes, [emph. added] which
are fully in accordance with the natural law. In this case, however, such
an approach is unnecessary; the ordinary meaning of the statute, within
which the precepts of the natural law comfortably inhere, fully suffices
to establish the unlawfulness of FDA’s action. Congress not only
specifically prohibited the use of the mails to promote “abortion,” but
also legislated more generally against “indecent and immoral” uses of the
mails; morality is itself incorporated into the positive law by its very
terms.
(Note again that this does not implicate the much-debated question whether judges exercising the power of constitutional review can apply the natural law directly to invalidate governmental action, a question on which classical theory offers nuanced considerations. This case, rather, features the much easier situation in which Congress itself has instructed the judges, through both a substantive federal statute and the APA, to enforce limits on agency action, including moral limits — and thus a situation in which the natural law is relevant as an interpretive aid). [emph. added]
In the view of Vermeule and Casey the FDA's approval - with Roe erased, should not be read to apply only to mailing to states where its use for abortion is unlawful. The statute draws no such line. The "natural law is, of its own force, the binding law of every political jurisdiction, including every target state." The natural law "is deemed to inhere in precepts of positive law." Vermeule and Casey turn to natural law philosopher John Finnis whose amicus brief in Dobbs urged that the 14th Amendment must be understood to recognize the unborn as persons entitled to its protection. It is hard to see Neil Gorsuch, Amy Barrett, Clarence Thomas, and Samuel Alito voting to limit the plain language of the Comstock Act now that Congress is no longer tied to Roe's recognition of a personal right. "Section 1461 of title 18 of the U.S. Code does not
prohibit the mailing of certain drugs that can be used to perform
abortions where the sender lacks the intent that the recipient of the drugs
will use them unlawfully. Because there are manifold ways in which recipients
in every state may lawfully use such drugs, including to produce an abortion,
the mere mailing of such drugs to a particular jurisdiction is an insufficient
basis for concluding that the sender intends them to be used unlawfully."
Federal law does not prohibit the use of mifepristone and misoprostol for producing abortions. Indeed, the FDA has determined the use of mifepristone in a regimen with misoprostol to be safe and effective for the medical termination of early pregnancy. And, to the extent relevant, these drugs can serve important medical purposes and recipients in every state can use them lawfully in some circumstances.
That is the object of Judge Kacsmaryk's attack on the FDA's scientific judgments regarding safe use. By declaring void the FDA's 22 year old approval of mifepristone he ordered a nationwide near ban on abortion by barring the sale of one of the two drugs in the protocol that, according to the Guttmacher Institute, now accounts for more than half of all abortions, . The Fifth Circuit left the original approval in place but struck recent FDA relaxation of the REMS - Risk Management - protocol. That order limited the drug to six weeks gestation - effectively an almost total ban.
But even that was too much for seven members of the high court acting on the emergency docket. Yet as Alito argues it will take just a few months before the Circuit Court of Appeals returns the issue to the high court's lap.
Justice Alito saw no harm from delay because denying women easy access to abortion is not something he sees as a right worthy of respect - though in Dobbs he left the issue to state by state determination. Alito's Danco Labs dissent is very sharply worded. He begins his dissent in Danco Labs, LLC v. Alliance for Hippocratic Medicine by criticizing Justice Kagan, who had given short shrift to the Court's use of its "emergency docket". It has become known as the "shadow docket" since it often consists of unsigned orders in abbreviated proceedings issued without or with minimal statements of grounds. The phrase clearly annoys Justice Alito. Fellow Justice Sonia Sotomayor is similarly criticized and even Justice Barrett is targeted, if softly.
One is left with the sense that the women are a particular object of Justice Alito's ire. The Justice's dissent states plainly that the only interest that matters is the manufacturer Danco's. There is no public interest at work in his mind. The only real interest is, it appears, the unborn. There is not a hint of concern for women's autonomy or readiness and willingness to take on the burdens of motherhood. That soon thousands of women would be unable to terminate an early pregnancy is obvious but does not constitute an interest within his purview.
Of particular note is Justice Alito's hostility to the executive branch. In his dissent from the grant of a stay he accuses the Justice Department of having unclean hands:
Our granting of a stay of a lower-court decision is an equitable remedy. It should not be given if the moving party has not acted equitably, and that is the situation here. The Food and Drug Administration (FDA) has engaged in what has become the practice of “leverag[ing]” district court injunctions “as a basis” for implementing a desired policy while evading both necessary agency procedures and judicial review. Arizona v. City and County of San Francisco, 596 U. S. ___, ___ (2022) (ROBERTS, C. J., concurring) (slip op., at 2).
That "leveraging" of which the Associate Justice speaks is the injunction to maintain the status quo virtually solicited by the Justice Department in a letter to Thomas Cox, a U.S. District Judge in Washington State. Cox has before him the sixteen state effort to maintain the FDA-sanctioned status quo which has made the drug available nationwide for over twenty years. Cox granted the suggested stay.
In my opinion there is substantial doubt whether the Dobbs majority will hold to the conclusion of the Opinion of the Court which concludes
Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.(emph added - gwc)
The majority, in my view, is likely to find that Congress has already barred use of the mails, limiting medication abortion to the states which permit it, and, perhaps restoring the six weeks gestation limit on Mifepristone use as the Fifth Circuit did.
-- George Conk April 23, 2023
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