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Natural Administrative Law
The Comstock Act and Abortion Drugs
Conor Casey and Cornelius Adrian Comstock Vermeule
During the many recent debates over common good constitutionalism and the revival of classical legal theory, we have severally and jointly made two points (among, of course, many others). First, on a classical view, government is both empowered and limited by the same fundamental principle: law is both promulgated and rationally ordered to the common good of the whole political community. Precepts of the divine and natural law and the law of nations constitute public authority, yet also indicate the ends to which it is ordered and the limits it may not transgress without becoming a kind of tyranny. Libertarian critics of the classical approach portray it as a brief for authoritarianism, but in doing so overlook this twofold character of the common good, as a principle that both justifies and limits authority.
Second, because all positive lawmaking is understood to represent a determination of higher background principles of reasoned law, the main use of natural law in the classical legal tradition is not to invalidate statutes on constitutional grounds. Rather it is sub-constitutional and interpretive: natural law inheres even in the semantic meaning of positive laws and is used to give them legal meaning through interpretation. The classical interpreter thus proceeds on the deliberate premise that, if at all possible, statutes and executive commands should be interpreted to harmonize with the natural law. What the 14th century Italian commentator Baldus de Ubaldis said of imperial authority — “nothing is presumed to please the Emperor except what is just and true … and the Emperor wishes all his actions to be ruled by divine and natural justice as well as human” — applies, mutatis mutandis, to Parliament or Congress, and to agencies that are in turn constituted by statute.
Both points help to illuminate the ongoing litigation, in several jurisdictions, about FDA permission for dispensing abortion drugs through the mail. To date, the most widely discussed ruling is a district court decision, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, which held that the FDA’s policy violates federal law. As of this writing the FDA has filed an emergency motion in the 5th Circuit for a stay, and litigation is ongoing. None of the points we will make turn on the details of these unfolding developments.
Some brief background: In April 2021 the Food and Drug Administration (FDA) announced that it would exercise “enforcement discretion” to permit the dispensing of the chemical abortion drug mifepristone through the mail. In December 2021, FDA announced it would permanently permit the mailing of the drug. The plaintiffs sought a preliminary injunction before the United States District Court for the Northern District of Texas ordering FDA to withdraw or suspend, inter alia, the FDA decisions removing the in-person dispensing requirement for mifepristone and permitting its distribution through the mail. The court granted a preliminary injunction, ruling that the plaintiffs had demonstrated a substantial likelihood of success on the merits and a substantial threat of irreparable harm. The court found there was a substantial likelihood that the agency’s decision would be found unlawful as violating both substantive federal law and the Administrative Procedure Act of 1946 (APA). Under the APA, a Court must hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
The case features a diverse array of preliminary and procedural issues, from standing, to exhaustion of administrative remedies, to the court’s ultimate decree, all of which we will ignore (and on which we express no views) in order to focus on the main point of interest here, the court’s statutory analysis. On the merits, the main issue in the case was rather straightforward: plaintiffs successfully argued that the FDA’s decision was likely to be found unlawful as a violation of the Comstock Act, a statute enacted in 1873 (and currently codified at 18 U.S.C. 1461) which limits the use of the mails for “abortion” and other “indecent or immoral” purposes. In relevant part, the Act defines a category of “nonmailable matter” which “shall not be conveyed in the mails or delivered from any post office or by any letter carrier” (or, in a parallel section, by “any express company or other common carrier … in interstate or foreign commerce”). Under the Act, the following are nonmailable matter:
“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.”
The FDA, relying on a 2022 opinion from the Office of Legal Counsel, which in turn drew on a handful of court of appeals cases from the 1920s and 1930s reading the Comstock Act narrowly, argued the statute should be interpreted not to extend to the mailing of chemical abortion drugs where the sender does not intend them to be used “unlawfully.” In other words, the argument ran, the statute does not cover the sender who mails drugs intending that they will only be used for abortions consistent with the recipient state’s abortion regime. OLC further contended that Congress had implicitly ratified that construction through later re-enactment of the Act without overturning the lower court decisions construing it narrowly.
The district court, however, found that the reasoned intent of Congress in passing the statute was best captured by the clear ordinary meaning of the text, observing that it is “indisputable that chemical abortion drugs are both ‘drugs’ and are ‘for producing abortion,’” and therefore “nonmailable.” The court found that the “statute plainly does not require intent on the part of the seller that the drugs be used ‘unlawfully,’” thereby rejecting the narrowing interpretation proffered by some earlier decisions and by OLC. The court found that none of the cases cited by FDA supported the view that the Comstock Act bars the “mailing of abortion drugs only when the sender has the specific intent that the drugs be used unlawfully.” Instead, the court found that the cases supported the proposition that “legitimate uses — uses beyond the purposes the statute condemns —should be excluded from the scope of the statute, not that whatever uses are lawful under state law should be.” Furthermore, OLC’s ratification argument could not overcome the statute’s clear ordinary language. Simply put, Congress’ reasoned intent was to prohibit the mailing of chemical abortion drugs, and because FDA’s actions violated this command, they violated federal law and (in the terms of the APA) were “otherwise not in accordance with law.”
Although the district court’s statutory analysis on the merits is persuasive on its own terms, we think it would have been even stronger if cast in a classical legal framework. 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, 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).
Even were this not so, however, OLC’s narrower construction still does not avoid the interpretation we urge, which harmonizes the Comstock Act with the natural law. Suppose that narrower reading is correct, and that the Act applies only to mailing for purposes that are “unlawful” within the target state. The natural law is, of its own force, the binding law of every political jurisdiction, including every target state, and is also deemed to inhere in precepts of positive law. As John Finnis puts it, basic precepts of the natural law are best regarded as “judicially applicable moral rules and principles” and “ipso iure (i.e., precisely as morally and judicially applicable) rules of law” belonging to the “ius gentium portion of our law.” These principles include bedrock moral absolutes which exclude “intentional killing, intentional injury to the person, deliberate deception for the sake of securing desired results, enslavement which treats a human person as an object or a lower rank of being than the autonomous human subject.”
Under a classical framework, then, even if the Comstock Act’s scope applies only to “unlawful” purposes within the target state, an interpreter should still discern the reasoned intent of Congress by presuming that the (implied) statutory restriction to “unlawful” uses will be understood consistent with basic principles of the natural law that are ipso jure part of the legal system. This would mean that mailing articles intended to be used in the target state for the intentional destruction of unborn life (which is of course different from licit medical treatment to save life, with foreseeable collateral effects) would fall within the scope of “unlawful” uses.
As we have argued at length elsewhere, although the classical law leaves substantial scope for public authorities to make reasonable determinations of background principles of the natural law, and enjoins courts to defer to such reasonable determinations, the positive law should always be interpreted in light of the limits of the background principles of natural law that public authorities are charged with implementing. The intentional taking of innocent life is an intrinsic evil, and thus necessarily contrary to natural reason. Positive constitutional and statutory law should be read, if at all fairly possible, to deny public bodies the authority to license such killing. If (and when) this matter reaches the Supreme Court, we hope the Court will similarly conclude that the legal materials relevant here – just like other provisions such as the due process and equal protection clauses — are fairly susceptible of readings that comport with the natural law.