At the risk of getting too deep into the weeds for some readers, I will offer much more searing criticism (on top of my post yesterday) of the Office of Legal Counsel opinion that argues that the federal ban on mailing abortion drugs does not apply when “the sender lacks the intent that the recipient of the drugs will use them unlawfully.” (Emphasis added.) On more careful scrutiny, I find the opinion to be entirely unpersuasive.
Here is OLC’s summary of its position:
Over the course of the last century, the Judiciary, Congress, and USPS have all settled upon an understanding of the reach of section 1461 and the related provisions of the Comstock Act that is narrower than a literal reading might suggest. This construction occurred long before the Supreme Court’s decisions in Griswold v. Connecticut, 381 U.S. 479 (1965), and Roe and thus was not dependent upon the Court’s recognition of constitutional rights regarding the prevention or termination of pregnancy. Beginning early in the twentieth century, federal courts construed the provisions not to prohibit all mailing or other conveyance of items that can be used to prevent or terminate pregnancy. By the middle of the century, the well-established, consensus interpretation was that none of the Comstock Act provisions, including section 1461, prohibits a sender from conveying such items where the sender does not intend that they be used unlawfully. USPS accepted that construction and informed Congress of it. On several occasions, Congress reenacted and amended the Comstock Act against the backdrop of the judicial precedent in a manner that ratified the federal courts’ narrowing construction.
I will first show that the “well-established, consensus interpretation” that OLC contends existed “[b]y the middle of the [20th] century” is a gross fiction. I will then contest OLC’s claim that Congress ratified this supposed interpretation.
1. None of the circuit-court cases that OLC cites from the first half of the 20th century stand for the proposition that the Comstock Act provisions bar the mailing of abortion drugs only when the sender intends that the drugs be used unlawfully.
OLC invokes rulings from a grand total of four circuit courts. Let’s run through these cases one by one.
As I discussed in my first post, the Seventh Circuit’s ruling in Bours v. United States (1915) actually cuts strongly against OLC’s position—a problem that OLC obscures by its selective quotations. The Seventh Circuit discerned in the predecessor version of section 1461 “a national policy of discountenancing abortion as inimical to the national life.” It excluded from the “general medical sense” of abortion only an operation to save the life of the mother. Far from limiting the statute (as OLC would) to abortions that are unlawful under the laws of the particular state in which the alleged violation occurred, it declared that “it is immaterial what the local statutory definition of abortion is, what acts of abortion are included, or what excluded.”
OLC next notes that in Youngs Rubber Corp. v. C.I. Lee & Co. (1930) the Second Circuit “reasoned in dicta that the statute could not be construed as expansively as its language might suggest.” Fair enough. But the Second Circuit’s dicta are more confused than OLC acknowledges. As OLC notes, the Second Circuit observes that the statutory language, “[t]aken literally, … would seem to forbid the transportation by mail or common carriage of anything ‘adapted,’ in the sense of being suitable or fitted, for preventing conception or for any indecent or immoral purpose, even though the article might also be capable of legitimate uses and the sender in good faith supposed that it would be used only legitimately.” (Emphasis added.) The Second Circuit could have adequately addressed this concern by reasoning that such “legitimate uses” should be excluded from the scope of the statute. That would mean, for example, that misoprostol, which, as OLC notes, “is commonly prescribed for the prevention and treatment of gastric ulcers,” could be mailed for that use. Instead, the Second Circuit sloppily speculated that “[i]t would seem reasonable” to construe the statute “as requiring an intent on the part of the sender that the article mailed or shipped by common carrier be used for illegal contraception or abortion or for indecent or immoral purposes.” (Emphasis added.) Even worse, it cited Bours as authority for this proposition.
In the next case discussed by OLC, Davis v. United States (1933), the Sixth Circuit faulted the district court for not admitting evidence that would “show absence of intent that the goods shipped were to be used for other than a legitimate medical or surgical purpose.” At issue were promotional mailings for “rubber sundries,” which the defendant contended were not for contraceptive purposes but instead had “a legitimate medical and surgical use in treatment and prevention of disease.” The Sixth Circuit held that “intent that the articles described in the circular or shipped in interstate commerce were to be used for condemned purposes is a prerequisite to conviction.” (Emphasis added.) So although the Sixth Circuit approvingly cited the Youngs Rubber dicta at length, its holding reflects the position that legitimate uses—uses beyond the purposes that the statute condemns—should be excluded from the scope of the statute, not that only illegal uses are covered.
The Second Circuit’s opinion in United States v. One Package (1936) also does not reflect the “consensus interpretation” that OLC posits. On the contrary, the Second Circuit declared that the Comstock Act enacted in 1873 “embraced only such articles as Congress [in 1873] would have denounced as immoral if it had understood all the conditions under which they were to be used.” At a time when abortion was broadly unlawful, the court observed that “[t]he word ‘unlawful’ would make this clear as to articles for producing abortion,” as it would allow operations to save the life of the mother. As the Seventh Circuit in Bours recognized, the Congress that enacted the Comstock Act in 1873 adopted “a national policy of discountenancing abortion as inimical to the national life.”
Two years later, in United States v. Nicholas (1938), the Second Circuit, citing Youngs Rubber and One Package, stated that it had “twice decided that contraconceptive articles may have lawful uses and that statutes prohibiting them should be read as forbidding them only when unlawfully employed.” OLC notes in a footnote that the “leading cases” for its supposed “consensus interpretation” “each involved items that could be used to prevent conception rather than to produce abortion.” But it blithely contends that this distinction is irrelevant, even as it completely ignores the passage above from One Package that renders that distinction critical. OLC also notes that the Second Circuit’s phrase “unlawfully employed” differs from its supposed “consensus interpretation,” but it maintains that “this difference in phrasing does not reflect a departure relevant to our analysis.”
The last circuit-court case that OLC cites is the D.C. Circuit’s 1944 opinion in Consumers Union v. Walker. There the D.C. Circuit held merely that “Congress did not intend to exclude from the mails properly prepared information for properly qualified people.” It cited Nicholas, Davis, Youngs Rubber, and One Package as support for that narrow proposition.
In sum, none of these circuit-court cases stands for the proposition that the Comstock Act provisions bar the mailing of abortion drugs only when the sender intends that the drugs be used unlawfully.
2. It would of course have been impossible for Congress to ratify a “consensus interpretation” that never existed. So that’s one fatal flaw in OLC’s argument.
There are plenty of other problems. Among them:
a. OLC relies heavily on a “Historical and Revision Note that was included in the 1945 report of the House Committee on the Revision of the Laws when Congress enacted title 18 of the U.S. Code into positive law.” But that note does nothing more than quote the dicta from Youngs Rubber and briefly describe the holdings of Nicholas and Davis, all of which concern contraception. The note makes only a single mention of abortion, in its quotation of the Youngs Rubber dicta. It’s farfetched to think that anyone who read that note would be on notice that enactment of Title 18 would mean that Congress was abandoning the “national policy of discountenancing abortion as inimical to the national life.”
b. Even if you were to accept OLC’s misreading of these rulings from four circuit courts, there were nine circuit courts when the Seventh Circuit issued its ruling in Bours and ten circuit courts when the other rulings were issued. So even if OLC’s account of these rulings were accurate, it would be odd to find a “consensus interpretation” from a minority of circuit courts.
OLC quotes Justice Scalia’s legal treatise (Reading Law: The Interpretation of Legal Texts, co-authored with Bryan Garner) for this proposition: “If a word or phrase has been … given a uniform interpretation by inferior courts …, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” But it ignores his query two pages later as to “how numerous must the lower-court opinions be … to justify the level of lawyerly reliance that justifies the canon.” Scalia opines that “seven courts” might be enough but that he “cannot give conclusive numbers.”
c. The most obvious way for Congress to have ratified the supposed “consensus interpretation” would have been to add the word unlawful to section 1461 (e.g., “for producing unlawful abortion”). Are we really supposed to believe that making that change and not making that change have the same effect?
d. Congress in fact unsuccessfully tried to make such a change on at least one occasion. A House subcommittee report from December 1978 proposed to modify section 1461 so that it prohibited mailing drugs (and other items) “intended by the offender … to be used to produce an illegal abortion.” (See p. 40 of report, proposing to substitute a new section 6701 in lieu of section 1461.) In support of that proposed change, the House subcommittee report states:
[U]nder current law, the offender commits an offense whenever he “knowingly” mails any of the designated abortion materials. Section 6701 of revised title 18 requires proof that the offender specifically intended that the mailed materials be used to produce an illegal abortion. An abortion is “illegal” if it is contrary to the laws of the state in which it is performed. [Underlining added.]
e. As OLC notes, the House report that accompanied Congress’s amendment of section 1461 in 1971 flatly states: “Existing statutes completely prohibit the importation, interstate transportation, and mailing of contraceptive materials, or the mailing of advertisement or information concerning how or where such contraceptives may be obtained or how conception may be prevented.” OLC contends that that statement “plainly was a reference to the literal text of their provisions, as opposed to their settled meaning.” But OLC’s anti-textual reading is not “plain[]” at all.