Justice Jackson has asked the most important question so far about this case on the abortion pill

[highroller]

What is it being asked to do?

It’s being asked to regulate the regulations and therefore regulate drugs.

They are the sovereigns that determine our access to drugs now.

 

[Napoleon]

Yep.

At the time of the law, abortion was illegal in most states/places in the US and considered a moral issue. That's why they technically violated parts of the 1st Amendment, freedom of speech in that law. There's no way that the part of the law that says its illegal to send any written material about abortion, how to obtain one, who would perform them, how to perform them couldn't be viewed as a violation of the 1st Amendment today. And it certainly isn't enforced, since I'm pretty sure PP and other abortion providers can advertise themselves through the mail where abortion is legal and there are plenty of books about abortions, including where to obtain them and how they can be performed, and those can/are sent through the mail.

The law is the law for as long as it remains on the books. The FDA is still bound by it no matter how antiquated you or they think it is. The FDA is not empowered to override Congress with rules and regulations.

 

[roguenuke]

The law is the law for as long as it remains on the books. The FDA is still bound by it no matter how antiquated you or they think it is. The FDA is not empowered to override Congress with rules and regulations.

Not really how our laws work.

Are people legally sending books through the mail that tell them how and where to obtain an abortion? How our laws are viewed, enforced matters to whether those laws are constitutional or not, valid, in full or in part, can be enforced.

 

[Napoleon]

Not really how our laws work.

Are people legally sending books through the mail that tell them how and where to obtain an abortion? How our laws are viewed, enforced matters to whether those laws are constitutional or not, valid, in full or in part.

An Executive agency overriding Congress with rules and regulations is not how our Constitution and separation of powers works. The FDA doesn’t get to ignore the law just because it doesn’t like it nor does it posses sovereign immunity. No amount of you raising unrelated perceived issues with other provisions of the Comstock Act changes that.

 

[j brown's body]

The law is the law for as long as it remains on the books. The FDA is still bound by it no matter how antiquated you or they think it is. The FDA is not empowered to override Congress with rules and regulations.

For more on that, see the Logan Act or Pt 3 of the 14th amendment, lol.

 

[j brown's body]

An Executive branch agency overriding Congress with rules and regulations is not how our Constitution and separation of powers works. The FDA doesn’t get to ignore the law just because it doesn’t like it nor does it posses sovereign immunity. No amount of you raising unrelated issues changes that.

Obviously, the government is arguing that it is not violating the Comstock act, and as other courts have said, it does not apply to doctors prescribing drugs or information for legal purposes.

 

[Napoleon]

Obviously, the government is arguing that it is not violating the Comstock act, and as other courts have said, it does not apply to doctors prescribing drugs or information for legal purposes.

No, the FDA is arguing that it has sovereign immunity and that as such any violations of the Comstock Act are non-justiciable. In plain English, their position in oral arguments today was that they can break the law if they want to and there’s nothing anyone can do about it.

 

[roguenuke]

An Executive agency overriding Congress with rules and regulations is not how our Constitution and separation of powers works. The FDA doesn’t get to ignore the law just because it doesn’t like it nor does it posses sovereign immunity. No amount of you raising unrelated perceived issues with other provisions of the Comstock Act changes that.

Why won't you answer my question? It's completely related to that law, as the Comstock Act, in the very next paragraph that you cited earlier says this:

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Do you believe that it is illegal to send books, information, letters, cards through the mail that give info about how to obtain an abortion?

And then there's this part, which is where they were using this act against birth control, which was also already set aside due to precedent.

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Those earlier rulings set the basis for the Comstock Act not being able to be used against things that are legal, that it was meant to apply to illegal acts and even parts of it are unconstitutional.

 

[Napoleon]

Why won't you answer my question? It's completely related to that law, as the Comstock Act, in the very next paragraph that you cited earlier says this:

Because it’s irrelevant to this case.

 

[Lursa]

What in that law prevents a woman from seeking reproductive healthcare wherever she chooses?

What in that law prevents package carriers other than USPS from delivering?

That's it! That's what someone else brought up a few months ago when we discussed this, couldnt remember it. It might have been you! I need to bookmark it.

 

[roguenuke]

Because it’s irrelevant to this case.

Its relevant to the argument that the law applies to abortion and the laws today, given that the rest of that law actually pertaining to abortion you seem to even agree would be unconstitutional, so there's no reason to believe that the part you agree with would not also be unconstitutional, considering the title of the law indicates it is meant to be about illegal activity.

What is the actual title of the law you cited?

Mailing obscene or crime-inciting matter​

Does abortion fit either of those as a legal description?

Additionally, as others have pointed out, that only applies to the USPS, not to other parties delivering those medications. At most, if that was found to still apply, then it would only prohibit the USPS from delivering those meds, not other carriers so then wouldn't have any real bearing on the FDA's authorization.

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www.fedex.com

 

[j brown's body]

No, the FDA is arguing that it has sovereign immunity and that as such any violations of the Comstock Act are non-justiciable. In plain English, their position in oral arguments today was that they can break the law if they want to and there’s nothing anyone can do about it.

They are arguing that they are not breaking the law.

 

[Uncensored2008]

What is the standing for the complainants? And why or how can they ask for a remedy that affects ALL women across the nation? Didn't this court just decide on the ballot case in Trump's favor because CO would be making a decision for all States?

I thought she was going to ask what a woman is, since she testified under oath that she doesn't know.

Standard Disclaimer: She doesn't know what the first amendment is either.

 

[Napoleon]

They are arguing that they are not breaking the law.

Not according to the oral arguments

 

[roguenuke]

Not according to the oral arguments

Do you really believe that law still applies, is still enforceable? You do understand that the SCOTUS itself can rule that the law doesn't apply because of its title alone, since the law was intended specifically to prevent mailing obscene or unlawful (criminal intent) material, and that would invalidate the parts related to legal abortions, since it is no longer obscene nor illegal to have an abortion?

Most likely, I doubt the SCOTUS will address that law during this ruling, likely sticking with those medical workers don't have standing and/or can be accommodated through much more limited means. Otherwise, they'd probably be seeing a larger debate around the meaning and intent behind the Comstock Law and how most consider it obsolete, especially those parts related to things that were considered illegal or immoral/illicit at the time of the law's enactment but no longer are. The very title tells us what the intent of the law was and abortion does not fit that definition within that title.

Analyses of Section 1461 - Mailing obscene or crime-inciting matter, 18 U.S.C. § 1461 | Casetext

casetext.com

The DOJ Office of Legal Counsel has filed an opinion saying they believe the Comstock Law is outdated and does not apply to legal abortion.

 

[Napoleon]

Do you really believe that law still applies?

It is still on the books so yes it absolutely still applies. And in any case, the FDA has zero authority to unilaterally make that decision or otherwise override Congress with rules and regulations of its own making nor does it have sovereign immunity.

 

[roguenuke]

It is still on the books so yes it absolutely still applies. And in any case, the FDA has zero authority to unilaterally make that decision or otherwise override Congress with rules and regulations of its own making nor does it have sovereign immunity.

Lots of laws are "still on the books", yet not truly enforceable, ruled in full or in part as not legally enforceable.

Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court | Resources | Constitution Annotated | Congress.gov | Library of Congress

A table of federal, state, and local laws held unconstitutional by the Supreme Court.

constitution.congress.gov

SCOTUS can rule that it isn't enforceable though, agree with the FDA.

 

[Napoleon]

Lots of laws are "still on the books", yet not truly enforceable, ruled in full or in part as not legally enforceable.

Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court | Resources | Constitution Annotated | Congress.gov | Library of Congress

A table of federal, state, and local laws held unconstitutional by the Supreme Court.

constitution.congress.gov

SCOTUS can rule that it isn't enforceable though.

Contrary to the FDA’s arguments today - the FDA has zero authority to unilaterally make that decision or otherwise override Congress with rules and regulations of its own making nor does it have sovereign immunity. If Congress no longer wants that law to exist then it can repeal it. Until that happens, the FDA is bound by it.

 

[roguenuke]

Contrary to the FDA’s arguments today - the FDA has zero authority to unilaterally make that decision or otherwise override Congress with rules and regulations of its own making nor does it have sovereign immunity. If Congress no longer wants that law to exist then it can repeal it. Until that happens, the FDA is bound by it.

Again, the SCOTUS can rule that given the general interpretation of this law, and the fact that it is not being enforced today (at least parts of it), and that the FDA and DOJ OLC believes it does not apply, the law no longer should be enforced due to changes of interpretation already in place or views/laws regarding abortion then compared to now. The same reason that what was considered "obscene" then is different too from what we consider legally obscene now.

Also, mifeprisone is used to control miscarriages too, not just to help induce abortions.

 

[Napoleon]

Again, the SCOTUS can rule that given the general interpretation of this law, and the fact that it is not being enforced today (at least parts of it), and that the FDA and DOJ OLC believes it does not apply, the law no longer should be enforced due to changes of interpretation already in place or views/laws regarding abortion then compared to now. The same reason that what was considered "obscene" then is different too from what we consider legally obscene now.

Again:

Contrary to the FDA’s arguments today - the FDA has zero authority to unilaterally make that decision or otherwise override Congress with rules and regulations of its own making nor does it have sovereign immunity. If Congress no longer wants that law to exist then it can repeal it. Until that happens, the FDA is bound by it.

 

[roguenuke]

Again:

Repeating yourself doesn't change the facts. The SCOTUS can side with the FDA and DOJ OLC here, despite your objections.

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www.justice.gov

And in fact, a different judge issued a ruling that the Comstock Law doesn't apply, meaning that part of this is deciding those conflicting rulings. That is one reason for the SCOTUS to intervene in such cases.

 

[Napoleon]

Repeating yourself doesn't change the facts. The SCOTUS can side with the FDA and DOJ OLC here, despite your objections.

The fact is that, contrary to the FDA’s arguments, it does not posses sovereign immunity nor does it have authority to override Congress with rules and regulations. The FDA is not challenging the constitutionality of Comstock Act in this case. It is arguing that it’s violations of the law are non-justiciable because, it claims, it is above the law and possesses sovereign immunity.

 

[The AntiDonald]

You don’t have a constitutional right to order whatever drugs you want through the mail and pour them down your gullet.

As long as the drug is prescribed by a doctor, yes you are. I've been getting my BP and Diabetes medicine through the mail for over 10 years.

 

[roguenuke]

The fact is that, contrary to the FDA’s arguments, it does not posses sovereign immunity nor does it have authority to override Congress with rules and regulations. The FDA is not challenging the constitutionality of Comstock Act in this case. It is arguing that it’s violations of the law are non-justiciable because, it claims, it is above the law and possesses sovereign immunity.

The fact is that other relevant judicial bodies, including a judge from Washington and federal counsels/attorneys agree with the FDA, saying that the law is not enforceable as claimed for abortion because it was based around abortion being illegal at the time and views that do not match what we hold today in regards to immorality being enforced by laws, obscene material, privacy, etc. Unless/until the SCOTUS says otherwise, which is something they should address here, there is conflicting views of whether it applies or not.

The main holding of the case that pertained to contraceptives, overturned that part, was that this law could not be used to prevent a doctor treating their patient with approved medication. That part was overturned by court decision prior to its removal from the actual act.

United States v. One Package, 86 F.2d 737 (2d Cir. 1936)

United States v. One Package, 86 F.2d 737 (2d Cir. 1936) case opinion from the US Court of Appeals for the Second Circuit

law.justia.com

In fact, they state that abortives are excepted in that ruling as long as they are not for unlawful abortions, as was found in a previous ruling. There is absolutely precedent for the stance taken by the FDA, as shown below.

The question is whether physicians who import such articles as those involved in the present case in order to use them for the health of their patients are excepted by implication from the literal terms of the statute. Certainly they are excepted in the case of an abortive which is prescribed to save life, for section 305 (a) of the Tariff Act only prohibits the importation of articles for causing "unlawful abortion."

https://www.supremecourt.gov/DocketPDF/22/22A901/263637/20230414171546686_22A901%20and%2022A902%20-%20Former%20DOJ%20Officials%20amicus%20brief%20supporting%20applicants.pdf

See Bours v. United States, 229 F. 960, 964-965 (7th Cir. 1915)

 

[jnug]

Contrary to the FDA’s arguments today - the FDA has zero authority to unilaterally make that decision or otherwise override Congress with rules and regulations of its own making nor does it have sovereign immunity. If Congress no longer wants that law to exist then it can repeal it. Until that happens, the FDA is bound by it.

If you are referring to the Comstock Act, the Comstock Act has nothing to do with FDA drug considerations. The FDA only concerns itself with the safety and utility of drugs.Thats it....thats all, at least as it relates to drugs. Their offerings lean toward what a doctor CAN do with a drug if he or she chooses.

If you are referring to the Laws that actually are relevant to the FDA it is there job to define what a doctor can do with a drug and to modify its instructions where it asserts that modification is justified.