The Comstock Act and Abortion Drugs
As always, an excellent article!
It seems to me that in the Brazilian legal system there is a direct opening for the interpretation of positive law in the light of natural law. In our Law of Introduction to Brazilian Law (LINDB), which establishes the basic rules for the interpretation of Brazilian laws, there is the following article:
"Art. 5º. Na aplicação da lei, o juiz atenderá aos fins sociais a que ela se dirige e às exigências do bem comum."
"Article 5. In the application of the law, the judge shall take into account the social purposes to which it is directed and the *requirements of the common good.*"
As you have rightly said, it would not be necessary for positive law to determine the consideration of the "requirements of the common good", but by doing so, it reinforces adherence to the classical conception of law. It also seems reasonable to understand that saying that the law must be interpreted and applied taking into account the requirements of the common good implies recognizing, even if indirectly, the applicability of natural law.
Another relevant point is the use of the expression "exigências do bem comum". I'm not entirely sure if the word "requirement" exactly corresponds to the word "exigência" in Portuguese (but it seems so), but in Brazilian Portuguese it means something that must be fulfilled; an imposition; an obligation. It seems that the meaning of the norm does not place the common good merely as something to be considered secondarily, subsidiarily to the meaning of the interpreted law, but rather as something that must necessarily be promoted.
Well, as always, reading your publications opens the reader's eyes to new (and at the same time, old) ways of seeing the law!
My comment is offered after much deliberation. It may sound like a cop-out but it isn’t.
The 3-way tug-of war between science, religion and Common Good Constitutionalism was long in the making before Dobbs. Indeed before Roe. In the near 50 years after Roe, Dobbs opened the floodgate of collateral consequences for pharmaceutical regulation in the competing concerns and duties of 3 apparently incompatible agents of power - State, Faith and Science. The “abortion pill” is only 1 Rx. Others are highly addictive Rx given to severe chronic pain sufferers, which in America has resulted in the scourge of mass opiate addiction. I am for all three agents, with emphasis on Common Good.
The central issue in Alliance for Hippocratic Medicine v. FDA concerns mifepristone, a synthetic steroid that inhibits the action of progesterone, given orally to end an intrauterine pregnancy through 10 weeks gestation (70 days or less) as of the first day of a patient’s last menstrual period. The FDA first approved Mifeprex in 2000 and its generic version of Mifepristone in 2019.
Of urgent concern in the case is the mail order and delivery of Mifepristone via an FDA approved pharmacy in the context of Telehealth during the pandemic. Telehealth, in my personal opinion, is not entirely unfraught.
This is all I can write. I stick with Common Good as a matter of law and as a matter of impartial moral and ethical anchor. As to what Common Good is - concept and practice - it has been plentifully expounded on this site by its authority far more learned than I.
AS USUAL, THANK YOU, Prof's Vermeule & Casey for your wonderful work on Common Good Constitutionalism. Wonderful because it is ultimately an act born of caring kindness to a society that is very lost in its reckless pursuit of "liberty" obtained at the cost of forfeiture of all ethical & moral concerns outside the purpose of a single and singular individual.
I lovely primer on legal theory and legal reasoning for the layman: me.
As for abortion, well....