44 Comments

Have we crossed the threshold-- in terms of the number of bad-faith arguments, willful misreadings of the record, and flat-out factual lies-- where we can yet say that this opinion is judicial misconduct? Because I am really struggling to see how anything could ever be judicial misconduct if this is not.

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Your discussions on these rulings are outstanding.

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Piling on here, but the juxtaposition of the “First ...” paragraph and the “True...” paragraph is really baffling.

The panel first asserts that whether the REMS requirements could be relaxed safely was “a question not studied by FDA,” but then it acknowledges *in the very next paragraph* that its description of the FDA’s rationale is false. The “True...” paragraph isn’t merely qualifying the “First...” paragraph, or explaining how what the FDA actually did should be regarded as somehow equivalent to the way the panel had just described the FDA’s reasoning. It’s acknowledging that the panel’s description is incorrect, which means the whole “First...” paragraph is just totally inapposite.

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Thank you for this series! As a non-lawyer I am finding it very interesting.

Regarding the Fifth Circuit's assertion that "FDA studied the safety consequences of eliminating one or two of the 2000 Approval’s REMS in isolation," I read that as "one or two changes *at a time*, in isolation from the other changes." Which sounds similar to how you described the FDA's review of the literature.

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That’s how I read CA5’s assertion as well. It’s a silly point, for the reasons Adam notes. There’s no general requirement that a study exactly duplicate all of the conditions under which the medication will ultimately be prescribed -- especially when at least in some of the studies, the omitted “conditions” actually seem like steps a researchers were using to collect data for the study, which could presumably be skipped once the data demonstrates that the new regimen is safe and effective.

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It's such a brainless argument. Agencies are explicitly allowed to fill gaps in the record-- and whatever gaps there are here are exceedingly narrow-- with reasonable predictive inferences from the data that exist. The Fifth Circuit is making up procedural requirements that have no basis in statute, i.e. precisely what Vermont Yankee tells courts they must not do.

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thanks, Adam for this again exhaustive analysis - feels like you are clerking for Supremes again!

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Adam, Is it true that your law firm represents Planned Parenthood in this very case? If so, that seems like a potential conflict of interest that should be disclosed in your posts. https://www.nationalreview.com/corner/adam-unikowskys-law-firm-represents-planned-parenthood/

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"Our position is factually and legally indefensible. How should we defend it?"

"I know-- let's attack the messenger!"

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I feel like that's more relevant if Adam himself were working on that case. He's a partner in the firm but I wouldn't say it's "his firm."

Even if he were working on the case, I don't think that invalidates any of his critique here. The district court and fifth circuit's decision are lobotomizingly stupid, as Adam thoroughly lays out. Unless you have a specific criticism of his legal reasoning, this comment just feels like a distraction effort.

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"Legal arguments are, in the end, right or wrong regardless of who advances them."

Thanks, Dan! Good to know. So is Adam right or wrong here? Given that the article does absolutely nothing to challenge any of Adam's arguments (because they are _correct_) and merely argues by association that there may be bias, I don't know why anyone should care. What a remarkably shallow and weak hit piece. They couldn't even bother to pretend that they had issues with his legal analysis.

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By not responding to arguments you have no answer for, whats the point of even pretending to have good points?

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The cynic in me, which I think is justified, thinks that the S Ct leaves the 5th Cir. injunction in place even though they know they will eventually have to throw the whole thing out down the road. So they get 2 years of restrictions but can just invalidate all of the bad law (like on standing) that would hamper there jurisprudence in other areas.

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i hope not

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Outstanding. Thanks.

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Any guesses what SCOTUS will do

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When you're weak on the facts, pound the law; when you're weak on the law, pound the facts; when you're weak on both, pound the table.

Lot of table-pounding going on from the right-wingers here.

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Also he discussed comstock a lot in the 2nd post, but maybe you were worried about breaking the law by reading about filthy things to read that post?

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lol this made me laugh

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Not sure what the Comstock Act has to do with standing and whether the FDA acted arbitrarily in approving the labeling and prescribing requirements for the drug. It seems you want to argue about something different from the merits of the decisions discussed in the posts.

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Does the federal reserve violate the humphrew hawkins act when it says the inflation target should be 2% when FEDERAL LAW clearly states the goal is 0%

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I’m confused. How does FDA approval of a drug violate the Comstock Act?

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I still don’t understand how approving a drug for mailing constitutes mailing the drug in violation of the statute.

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So ur admitting the lower courts standing arguments are indefensible. FDA’s 2021 rule change just allowed the pill to be directly sent through the mail, according you it was arbitrary and capricous for the fda to ever approve the pill at all, given it violates criminal law according to you to introduce anything that could be used for an abortion (including presumbaly most surigical instruments) into interstate commerce. So my dad cant get sinus surgery because the tools used could also be used for an abortion

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The Comstock Act is an ancient relic which was not repealed but was found unconstitutional, and hasn't been in use since the 1950s. It is, in spite of your insistence otherwise, full of unclear language that requires interpretation - "obscene", "filthy", "vile", "indecent or immoral purpose", et cetera - and has been considered broadly unconstitutional since 1973.

Like, to be clear, this act makes it illegal to send nude pictures, books containing erotic scenes, contraceptives, and more across state lines. It hearkens back to a time where basic freedom of speech could easily be infringed by state governments, and where individual liberty was drastically curtailed. It has been picked apart by over a century of court cases. It didn't need to be repealed by congress because it was fundamentally unconstitutional.

This is the hook you want to hang your coat on? That this ancient, dead law from the reconstruction era should be resurrected? That congress should be forced to repeal it because a handful of extremist right-wing hacks (for evidence of this claim, see: the last four posts on this blog) in the judiciary are willing to throw out all prior precedent and basic rules of the judiciary to ban abortion?

If you've gotten here and your main takeaway is "what about the Comstock act", I don't believe you care about the rule of law, because under the rule of law, this case never would have gotten to this point. I also don't believe that you want the Comstock act to be the law of the land, because you're not an 18th-century morality crusader. You just want abortion banned, and don't really care what has to happen to make that a reality. Acting like you're taking a principled stand for the rule of law is just insulting.

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I mean, when talking about a district court reviving Comstock for the first time in half a century as part of a ruling that is so lawless that the judge involved should absolutely face sanctions, I think its half-century-long status as dead letter is pretty darn relevant.

But you don't actually care about that, so I'm not sure why you're even arguing about it.

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Invocation of the Comstock Act was an extraordinary Hail Mary pass by the plaintiffs.

This is laid out in great detail in the amicus brief of Former USDOJ Officials' (https://www.supremecourt.gov/DocketPDF/22/22A902/263639/20230414172845760_22A901%20and%2022A902%20-%20Former%20DOJ%20Officials%20amicus%20brief%20supporting%20applicants.pdf) that lays out the multiple demonstrations that plaintiffs need to--but have failed to--make.

To take just one part, for simplicity, FDA could not have violated the Comstock Act because it did not mail mifepristone, and even non-in-person prescribers may not implicate Comstock because they will not necessarily convey mifepristone using the mail or common carriers. Bear in mind that FDA has approved a number of controlled substances that may be illegal to possess or use in many cases.

I look forward to EL's detailed explanation for why those amici are wrong at each step. (and no, 'Amici Bad' won't cut it any better than 'OLC Bad!')

One would think that, with all EL's carping about "the plain letter of the law," we would also have heard about the (very much plainer) letter of the law (in 21 USC 355) that directs the FDA to approve applications unless they find that specified grounds for disapproval--very much not including the Comstock Act--apply.

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Title 21, Part 139, of the Code of Federal Regulations sets rigid standards for the specifications of noodles — though on just four varieties.

It requires macaroni to be tube-shaped and have a diameter between 0.11 and 0.27 inches.

Spaghetti must be tube- or cord-shaped and have a diameter between 0.06 and 0.11 inches, while vermicelli must be cord-shaped with a diameter less than 0.06 inches.

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Statute 18 U.S.C. § 336 makes it a federal crime to issue “any note, check, memorandum, token, or other obligation for a less sum than $1”

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Also, if ur incorrect unworkable reading of comstock was applied, anything that could be used for an abortion would not be mailable. Basic medical equipment could no longer be mailed. A scapel might be used in an abortion therefore no more mailing scapels. Theres no exceptions in ur reading to enforce it would be impossible

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The Comstock Act is rather “ancient” itself. The OLC opinion, which is linked in part 2 of the series, cites cases spanning approximately 90 years after Comstock’s enactment holding that intent for illegal use was necessary to constitute a violation. If that history is correct, simply dismissing these cases as “ancient” is not a particularly compelling argument.

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Based upon its ruling on standing, not even the Supreme Court’s decisions are binding on the 5th circuit. But to your point. I never said the decisions cited in the OLC opinion were binding on the 5th circuit. They do, however, constitute authority for interpreting the Act as requiring intent. Yes, it is true that older authorities are generally less persuasive than newer ones. But the Comstock Act is 150 years old and based upon the history presented in the OLC opinion, courts interpreting the Act held for a span of 90 years that intent was required to constitute a violation and there have been no subsequent cases In conflict with those holdings. My point was simply waving your hand and dismissing these cases as ancient is not a persuasive argument.

Yes, it is true that statutory interpretation starts with the text. Where it ends is a far more complicated question.

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If case law supports the Biden administration’s interpretation of the statute, then the administration is not simply ignoring of the law of the land.

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The Griswold & Eisenstadt essentially put the Comstock Act on hold for over 50 years. It’s only now that pro forced birth activists have latched onto it.

https://www.pbs.org/newshour/politics/what-does-comstock-act-a-law-from-the-1870s-have-to-do-with-abortion-pills

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“Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance… is nonmailable”

Does that sound like an enforceable law? Comstock act says anything “filthy” is non mailable.

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Viagra is “filthy” as are dildos. Envelopes licked closed by someone who is sick might even be filthy. Does comstock prohibit the mailing of a letter of someone who has a cold? Is comstock a national ban on sex toys?

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Is everything that could be used for an abortion is nonmailable then are you saying the comstock act is a national abortion ban that includes making it illegal for doctors to have tools that could be used in surgical abortions to save the mothers life, or in cases of rape or incest? There are no exceptions in your incorrect reading, so doctors would have to let mothers with ectopic pregancys die because anything that could be used to save their life is unmailable

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Apr 18, 2023·edited Apr 18, 2023

If the Comstock Act was irrelevant given Roe, then how can the FDA’s decision, which it reached while Roe was still good law, have violated the APA by failing to appropriately consider the Comstock Act?

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That’s not how APA review generally works, and in any event, no one sought review of the 2021 decision. It’s not before the court, so it’s unclear why you’re even talking about it.

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Also would certainly be a ban on viagra which can easily be obtained through the mail

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Also the comstock act in in ur reading would ban anything (including medical equipment/devices/tools) used for any abortion including if the mothers life was threatened and definitely in cases of rape or incest.

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are you saying we should start enforcing the comstock act? should they start seizing the erotica novels

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