WHAT'S REALLY GOING ON HERE?
THE HIGH COURT AND THE LOW CAMPAIGN: TRUMP PLEADS DOUBLE JEOPARDY TO GET DOUBLE IMMUNITY FROM THE SUPREME COURT. BUT ANOTHER CASE ABOUT MAILING THE ABORTION PILL MAY AFFECT THE 2024 ELECTION MORE.
We have known for a considerable time that the 2024 presidential race would be a “courtroom campaign.” There are ninety-one felony indictments lodged by federal and state authorities pending trial in 2024 against candidate Donald Trump. The Republican majority in the House of Representatives has formally initiated impeachment proceedings against candidate Joe Biden that could force the Senate to sit as judge and jury. There is always the potential in criminal trials for legal issues creating grounds to appeal rulings and decisions that involve both statutory and Constitutional interpretation that could involve the United States Supreme Court. A House impeachment and Senate conviction of President Biden would ordinarily seem beyond the High Court’s authority to review. Some observers have noted, however, that the House investigation seems to be focused almost exclusively on allegations involving actions taken by Biden before he became President, which raises the question whether such actions would be a Constitutionally proper basis for his removal from office.
Moreover, former President Trump’s attorneys have already argued that the federal indictment for his actions with respect to the events at the U.S. Capital on January 6, 2021, that impacted and interrupted the mandated Congressional certification of the 2020 Electoral Votes is also Constitutionally impermissible as “double jeopardy,” because he has already been impeached and tried -- but not convicted -- by the Congress. They are also arguing that he is immune from prosecution precisely because he was tried but not convicted by the Senate! The Supreme Court seemingly will need to decide whether impeachment with the risk of removal from executive office (a political action by the legislative branch) is equivalent, in terms of double jeopardy, to a criminal indictment with potential for substantial risk of fines and imprisonment -- and also whether Trump’s escape from conviction by the Senate means he cannot be indicted for any actions he took as President, whether criminal or not.
Essentially, while candidate Trump is claiming double jeopardy to avoid criminal prosecution after surviving an impeachment trial, he is in effect asking the courts to grant him double immunity: in the first instance, from the plain meaning of Section 3 of the Fourteenth Amendment that would bar him from holding the office of president for violating his oath to support the Constitution by engaging in an insurrection; in the second, from the plain meaning of the federal statute invoked by Special Prosecutor Jack Smith that criminalizes Trump’s effort (by subterfuge and force) to prevent Congress from proceeding with its official duty to receive and certify the results of the 2020 Presidential election that showed Trump lost.
Just before year-end 2023, the Supreme Court of Colorado, in a 4-3 ruling, held that former President Trump’s name could not appear on that State’s 2024 ballot because his actions relating to and on January 6 (as the original trial court in that State found after an evidential hearing) constituted engaging in an “insurrection” within the meaning of Section 3 of the Fourteenth Amendment to the U.S. Constitution such that would bar those who previously swore support for the Constitution from holding federal or state office again. One of the Colorado Court’s minority opinions in this case, however, raised strong questions as to whether the evidentiary hearing in the lower court’s proceedings constituted even a minimum level of acceptable due process under the Constitution. The majority -- recognizing the significance of its holding in such an unprecedented case to the 2024 election -- also refrained from ordering the exclusion of Trump’s name from the State’s Republican primary ballot so long as Trump’s side can secure an urgent appeal to the Supreme Court. The Maine Secretary of State on December 28 also reached the same conclusion as the Colorado Supreme Court, which candidate Trump has appealed immediately to Maine’s court.
In the meantime, federal Special Counsel Jack Smith had also asked the Supreme Court -- for essentially the same urgent election- related reasons -- to undertake an expedited review of candidate Trump’s challenge to a District of Columbia federal judge’s ruling rejecting Trump’s claim of immunity from prosecution for alleged obstruction of the January 6 Congressional Electoral Vote count, on the basis that his actions during his Presidency were absolutely immune from any criminal prosecution because his impeachment failed in the Senate, and were well within what the Supreme Court has previously referenced as the “outer” bounds of his official responsibilities and thus immune from civil liability.
The Court in a one sentence unsigned memorandum rejected that request, an important victory for the Trump campaigns’ prime objective to delay any criminal proceeding against him until after the November 2024 election. The trial judge in D.C has been effectively forced by Trump’s appeal to halt pretrial proceedings for the still-scheduled March commencement of Trump’s criminal trial. It is notable that it required 5, not just 4, Justices to grant such an expedited consideration. A current majority of Justices, regardless of their substantially differing approaches to jurisprudence, may simply have desired to be able to review a further set of well-researched legal opinions from the Court of Appeals for the D.C. Circuit before they themselves may ultimately chose to settle this unprecedented “case of first impression” during their current term ending in June.
Accordingly, it appears that the High Court will in effect review first the decisions of Colorado and Maine authorities to ban Trump from their states’ presidential ballots. This case presents particularly interesting questions for the 6 conservative Justices who adhere to the “textualist” or “originalist” schools of jurisprudence. Most of those nominated by GOP presidents adhere to one or the other, and sometimes both, theories. The textualist theory in its simplest form asserts that, if the legislation Constitutional provision is clear and unambiguous on its face, the Court should look no further: apply as it is written, even if “legislative history” suggests otherwise or prior Supreme Court precedent is to the contrary. The “originalist” theory -- most evident recently in the Dobbs decision overruling the 50-year precedent of Roe v. Wade affirming a Constitutional right to abortion – asserts that any such right implied from more general provisions of Constitutional language such as “due process” must find its roots in the circumstances and legal practices and traditions in place at the time those general prescriptions came into effect, whether in and around 1789, or in the case of the Fourteenth Amendment in 1868! Let that sink in a moment: thanks to Justices Alito and Thomas and their concurring colleagues, individual liberty rights under the Constitution are now frozen as they were understood and in place a full century and a half ago unless, like the right to vote for women and eighteen-year-olds and for everyone to be free of poll taxes, they have been spelled out in detail in Constitutional Amendments.
With a Court majority so enraptured by its reactionary and irrational jurisprudence, nobody can confidently predict how it will rule if it takes on Trump’s twin legal efforts to stay on the ballot and stay out of jail. When it comes to the Colorado ballot case, the issue is whether Colorado can take action on its own to enforce Section 3 of the Fourteenth Amendment by removing Trump from its presidential ballot because, having taken an oath to support the Constitution as President, he thereafter “engaged in insurrection” against what it stands for, and is thus ineligible to hold that office even if elected. Here is the full text of that Section:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds thereof in each House, remove such disability.” Amendment XIV, Section 3, United States Constitution. https://constitution.congress.gov/browse/amendment-14/section-3/
Trump’s legal argument is that Section 3 does not apply to him because it does not refer specifically to the presidency; that the presidency is not an “office under the United States;” that he did not take an oath as President specifically to “support” the Constitution; that Section 3 is not in effect because Congress has not enacted legislation to enforce (and thus Colorado courts have no power to do so); that he was not afforded due process by the Colorado trial court; and that, in any event, he did not engage in an insurrection. Colorado Supreme Court rejected all these arguments and found Trump had engaged in insurrection.
The U.S. Supreme Court’s conservative Justices, textualists and originalists alike, will have to struggle with the wording in Section 3, which on its face seems clear enough to put the Trump’s candidacy in some jeopardy. The presidency is an office of the “United States.” (What else is it, if not?) Some suggest that the absence of specific reference to it and the vice presidency means the section was not meant to apply to them, based on the fact that Section 3 specifically mentioned members of the U.S. Congress and presidential electors -- but that was likely because those persons are all chosen to represent individual states and not the “United States” -- and the drafters therefore wanted to be crystal clear those positions were covered by the Section’s prohibitions.
The “originalist” Justices could assert correctly that Section 3 was intended to keep former Confederate officials who violated their oaths to support the U.S. Constitution from holding federal or state office after the Civil War, but there is no language in Section 3 that suggests a time limit or any other limit to the implementation of its provisions, and Congress itself acted in subsequent year to remove that disability from Confederate officials several years later, as provided for in Section 3’s expressed terms, which show that the contemporary understanding around that time was that there was no ambiguity in the Section that Congress needed to clarify before it could be enforced. Nor would it be credible in terms of “plain meaning” to argue that the phrase “preserve, protect and defend” the Constitution that Trump took as President does not plainly constitute an oath to “support” the Constitution. Textualism provides no escape hatch from the clutches of Section 3 for Trump.
There is no language in Section 3 that requires a prior judicial conviction of a crime of insurrection or rebellion to disqualify a person from holding office. Nor did Congress or any court require that former Confederate officials stand trial and be found criminally guilty of insurrection before the disqualification of Section 3 could apply to them. Nor was an act of Congress necessary to implement Section 3 before such judgments were passed. It was “self-enforcing” then; it must be self-enforcing now, just as the Colorado Supreme Court concluded. For any originalist U.S. Supreme Court Justice, this fact should undercut the Trump argument that Section 3 should be understood today as requiring a criminal conviction for insurrection before Trump can be disqualified to hold office.
Both textualists and originalists have tended to support reliance on the “plain meaning” of legal terms -- a situation that would seem to apply to the word “insurrection” since Section 3 offered no further definitional reference. Nor does the Section 5 of the Fourteenth Amendment literally require Congress to enact implementing legislation to bring the Section 3 prohibition into effect. Its wording is a routine, “boilerplate” grant of permission to Congress of “power to enforce, by appropriate legislation” each of the provisions of the Fourteenth Amendment. Equivalent language is also found in the following Constitutional Amendments: Thirteenth (ending slavery); Fifteenth (right to vote regardless of race); Nineteenth (women’s right to vote); Twenty-third (District of Columbia presidential electors); Twenty-fourth (no poll or other tax on voting); and Twenty-sixth (right to vote at 18).
The reference to Congressional enforcement power in Section 3 was no “mandate” for federal legislation to bring it to life. The Section 3 authors were likely mindful of Amendment Ten of the Constitution, which provides that the powers “not delegated to the United State by the Constitution are reserved to the States respectively, or to the people.” Obviously, they did not want the Fourteenth or any of the other Amendments noted above to be considered somehow to depend on the states for enforcement or be subject to State contravention. Nothing in Section 3 precluded the states from enforcing it from the outset. The grant of legislative power to Congress in those Amendments simply added to the specific legislative powers listed in Article I of the Constitution to obviate any conflict with the Tenth Amendment.
The basic Constitutional provisions regarding the management of federal elections at the state level by state officials (see Articles I and II and the Twelfth Amendment), therefore, are in place to govern how Section 3 is implemented, unless Congress has exercised its powers under Section 5 of the Fourteenth Amendment to the contrary. Congress has not so acted. It is now up to the courts to decide Trump’s ballot eligibility.
The sense here, however, is that the majority of textualists and originalist conservative Justices will ultimately be unwilling to hold that Trump is disqualified by the substance of Section 3 to hold the office of president again. Rather than twist their textualist and originalist doctrines into unintelligible jurisprudential pretzels, they will likely look for a way to overrule the Colorado Supreme Court without getting to any substantive interpretation of Section 3 by reversing the decision below on procedure grounds. One such approach would be holding that Trump’s “liberty” to pursue the presidency has been denied to him by the Colorado trial court’s failure to provide him with adequate “due process” as required in state proceedings under Section 1 of the Fourteenth Amendment. Such an approach was essentially scripted for the U.S. Supreme Court by one of the three dissenting jurists on Colorado’s Supreme Court, who called the trial court’s approach to deciding the case “a procedural Frankenstein.”
“Even with the unauthorized statutory alterations made by the district court, the aggressive deadlines and procedures used nevertheless stripped the proceedings of many basic protections that normally accompany a civil trial, never mind a criminal trial. There was no basic discovery, no ability to subpoena documents and compel witnesses, no workable timeframes to adequately investigate and develop defenses, and no final resolution of many legal issues affecting the court’s power to decide the Electors’ claim before the hearing on the merits.
“There was no fair trial either: President Trump was not offered the opportunity to request a jury of his peers; experts opined about some of the facts surrounding the January 6 incident and theorized about the law, including as it relates to the interpretation and application of the Fourteenth Amendment generally and Section Three specifically; and the court received and considered a partial congressional report, the admissibility of which is not beyond reproach….
“I cannot agree with the majority that the chimeric proceedings below gave President Trump process commensurate to the interest of which he has. Nor did the proceedings below protect the interest Coloradans have in voting for a candidate of their choosing. Of course, if President Trump committed a heinous act worthy of disqualification, he should be disqualified for the sake of protecting our hallowed democratic system, regardless of whether citizens may wish to vote for him in Colorado. But such a determination must follow the appropriate procedural avenues. Absent adequate due process, it is improper for our state to bar him from holding public office….
“Because I cannot in good conscience join my colleagues in the majority in ruling that Section Three is self-executing and that the expedited procedures in our Election Code afforded President Trump adequate due process of law, I respectfully dissent.”
Let’s assume for the moment that Trump’s first request for immunity succeeds. After oral argument set for February 8, a Supreme Court majority finds a way to hold that Donald Trump cannot be disqualified pursuant to Section 3 of the Fourteenth Amendment from any state’s ballot for the office of president in 2024. What are his chances of being awarded a second and equally consequential form of absolute immunity by the Court from Special Counsel Jack Smith’s criminal prosecution of his actions relating to the events at the Capitol on January 6, 2021.
Trump’s lawyers advanced several theories challenging his indictment for his actions in support of the effort to obstruct the certification of Biden’s victory by the Congress on January 6.
“First, President Trump’s public statements and tweets about alleged fraud and irregularity in the federal election fall within the outer perimeter of Presidential duty, to which communicating with the public on matters of federal concern is absolutely central….President Trump’s other public statements are also plainly official….Second, President Trump’s communications with the U.S. Department of Justice about investigating widespread reports of election fraud, and deliberating about replacing the Acting Attorney General, are quintessential Presidential acts. The President shall ‘take Care that the Laws be faithfully executed.’…Third, communications with state officials about their exercise of official duties with respect to a federal election falls within a President’s official duties….
“Fourth, communicating with Members of Congress, including the Vice President in his capacity as President of the Senate, about their exercise of their official duties lies at the core of Presidential responsibility. J.A.375-78. The President has intimate and extensive responsibility in the legislative process. U.S. CONST. art. I, § 7, cl. 2-3. Article II specifically provides that the President ‘recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient.’ U.S. CONST. art. II, § 3. This includes the Executive Branch ‘mak[ing] its views known to Congress on all matters in which it has responsibilities, duties, and opinions.’ …Fifth, organizing contingent slates of electors to support the President’s advocacy to the Vice President and Congress is likewise an official act….The indictment itself alleges that these acts were intertwined with President Trump’s attempts to lobby the Vice President and Members of Congress.
“Before any single prosecutor can ask a court to sit in judgment of the President’s conduct, Congress must have approved of it by impeaching and convicting the President. That did not happen here, and so President Trump has absolute immunity.”
https://s3.documentcloud.org/documents/24254349/trump_brief_immunity.pdf
The Supreme Court has already decided to let the jurists on the Court of Appeals for the District of Columbia speak first on Trump’s appeal of the District Court trial judge’s absolute rejection of Trump’s claim. And speak they did. Judging by the sharp language of the District Circuit’s three-judge panel at its hearing on January, Trump is highly unlikely to prevail in his outlandish claim. The appellate panel did not get into the question of whether Trump’s particular actions regarding the election outcome, the mandated January 6 Congressional meeting, the Vice President’s role in that meeting, and the creation of alleged “alternative” state presidential electors were within or not the scope of his official duties. Instead, they went directly to the broader assertion that Trump should be granted absolute immunity from prosecution directly and solely because the Senate did not choose to convict him upon his second impeachment, and bluntly eviscerated his argument.
“With Trump looking on, a three-judge panel expressed deep skepticism of his contention that a president could not be prosecuted — even for assassinating a rival or selling military secrets — if he were not first impeached and convicted by Congress. In a nutshell: ‘I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law,” said Judge KAREN HENDERSON, a GEORGE H.W. BUSH appointee.
“The buzzy moment: During a back-and-forth between Judge FLORENCE PAN and Trump attorney D. JOHN SAUER, Pan dug into the nitty-gritty of the Trump team’s argument for immunity with a hypothetical that brought out a pretty shocking claim from Sauer.
“Judge: ‘I asked you a ‘yes’ or ‘no’ question: Could a president who ordered S.E.A.L. Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?’ Sauer: ‘If he were impeached and convicted first—'Judge: ‘So your answer is no?’ Sauer: ‘My answer is: qualified yes. There is a political process that would have to occur under our Constitution, which would require impeachment and conviction by the Senate.”
Trump’s legal team had argued that Trump has absolute immunity from prosecution because of the wording of the impeachment clause of the Constitution, which among other things says that a person impeached and convicted by the Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” U.S. Constitution, Article I, Section 3, concluding paragraph. Trump’s lawyers asserted that language means that any subsequent criminal prosecution is necessarily barred if impeachment or conviction fail. The Judge wasn’t buying it, and quickly put Trump’s lawyer further on the defensive.
“Once you concede that presidents can be prosecuted under some circumstances, your separation-of-powers argument falls away and the issues before us are narrowed to: Are you correct in your interpretation of the impeachment judgment clause — does the impeachment judgment clause actually say what you say it says?” Pan told Sauer. “That’s all that really we need to decide.” https://www.washingtonpost.com/opinions/2024/01/09/trump-immunity-appeals-court/
The Washington Post columnist Ruth Marcus, an experienced Supreme Court observer, pin-pointed the core absurdity of Trump’s legal argument, citing the holding of the trial judge and explaining the Trump teams’ main intention with regard to its repetitive assertion of absolute immunity claims.
“But as U.S. District Judge Tanya S. Chutkan pointed out in rejecting Trump’s argument last month, ‘reading the Clause to grant absolute criminal immunity to former Presidents would contravene its plain meaning, original understanding, and common sense.’ The purpose was to permit prosecution in spite of Senate conviction, Chutkan noted, not to prevent it in the absence of impeachment proceedings.’
“There are additional wrinkles here. The court could rule that Trump doesn’t even have the right to appeal at this early stage in his criminal trial, although the special counsel agrees with Trump’s lawyers that the appeal is permitted before trial and possible conviction. As a practical matter, that would kick the can down the road but not interfere with prosecutors’ ability to bring the case to trial. And that is the real point of the immunity dispute. Trump’s lawyers don’t really expect to win it — they just want to run out the clock, past the current March 4 trial date and, preferably, past Election Day. That won’t take just a quick ruling by Tuesday’s panel to avoid, but also an equally swift disposition by the full appeals court or Supreme Court, when the case inevitably comes its way. Timing isn’t everything here, but it’s awfully close.”
https://www.washingtonpost.com/opinions/2024/01/09/trump-immunity-appeals-court/ (Emphasis supplied.)
In his brief to the Circuit Court, Special Prosecutor Jack Smith importantly also pushed back on Trump’s assertion that his prosecution amounted to “double jeopardy.” He emphasized that impeachment proceedings are not a criminal process, that the impeachment focused on “incitement of insurrection” on Jan. 6, not the broader effort to overturn the election that was included in Smith’s criminal charges. ‘‘’The mere fact that some of the conduct on which the impeachment resolution relied is related to conduct alleged in the indictment does not implicate the Double Jeopardy Clause or its principles,’ the brief said.” https://rollcall.com/2024/01/08/appeals-panel-to-hear-oral-arguments-on-trump-immunity/
Given its relatively quick review of the District Court’s decision, the Circuit Court panel is likely to rule expeditiously on Trump’s appeal. It could simply affirm Judge Chutkan’s holding, where she affirmed that presidents are not above the law and can face federal charges for conduct that occurred during his term. “’Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass.” Ibid.
Besides Monopoly-style wild cards, there are some curve balls that could emerge whenever the District Court holding comes out. Either Trump or the Special Prosecutor can appeal: either by asking all eleven justices on the Circuit Court to consider the decision (would require a majority to agree to do so), or by proceeding directly to seek a Supreme Court review. If Trump loses, it is expected his lawyers will take the maximum time allowed in filing their papers, which could delay any ultimate hearing or decision by the Supreme Court to the very end of their current term at the end of June -- a political victory for Trump whether he prevails on the merits as to immunity. Judge Childs on the appellate panel also suggests that Supreme Court precedent might require postponing any decision on immunity until after his trial, because criminal defendants typically can’t appeal issues in their cases until then. Under this theory, the D.C. Circuit could simply pass on Trump’s appeal for now and allow the trial to proceed on its March schedule, which Trump would not like. Judge Henderson separately raised the possibility of sending the case back to Judge Chutkan to decide up front which of Trump’s acts cited in the indictment were arguably related to his official duties, which would certainly complicate the prosecution’s case and delay any substantive decision and trial substantially, perhaps even until after the November election.
The Supreme Court of course could ultimately refuse to hear an appeal from Trump. In that eventuality, however, Jack Smith likely holds the winning card. If the D.C. Circuit judges essentially adopt the trial judge’s conclusion denying Trump’s immunity claims, her decision will stand if the Justices stand aside. The view here is that at the end of the day in the federal courts, Trump will be protected from disqualification as a candidate for president under Section 3, but his prosecution as a criminal defendant goes forward without any presidential immunity. Neither decision would necessarily determine the outcome of the 2024 election, as a contrary outcome in either case would.
The campaign could be much affected by another case stemming from Trump’s action as President – namely, his three successful Supreme Court nominations in four years premised on their quickly taking the opportunity to overturn the Roe v. Wade line of cases establishing a woman’s Constitutional right to access an abortion prior to fetal viability. The new Court did so at its first opportunity in the Dobbs case in 2022. That decision empowered anti-abortion activists to renew a challenge to the Food and Drug Administration’s decision in 2000 to approve a pill known as mifepristone as a prescription agent in abortions, and more recently to extend such use in 2016 to the tenth week of pregnancy and allow its distribution by mail order beginning in 2021. The pill is estimated to be involved in effecting roughly half of all contemporary abortions in the U.S.
On review, the Fifth Circuit held that it was too late to challenge the 2000 FDA approval but agreed that the FDA did not follow proper procedures in its more recent rulings liberalizing use of the pill and accordingly reversed its extended period of use and banned its distribution by mail order. The Supreme Court temporarily stayed that holding (Justices Alito and Thomas dissenting) while it reviews in its current term the challenge brought by the pill’s manufacturer and the Biden Administration. Many anti-abortion activists are hoping that the Court will not merely affirm the Fifth Circuit’s majority decision based on administrative law lapses by the FDA but – now that Roe is no longer operative – go further and revive the provisions of the long-defunct anti-pornography Comstock Act of 1873, as amended, which on its face still prohibits the distribution of any instrument used for abortions from distribution via the U.S. mails or common carriers. https://www.theatlantic.com/magazine/archive/2024/01/anti-abortion-movement-trump-reelection-roe-dobbs/676132/
“Following the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in 2022, the United States Postal Service asked the Justice Department for clarification: Could its workers legally transport abortion-inducing medications to states with bans? The DOJ replied by issuing a memo stipulating that abortion pills can be legally mailed as long as the sender does not intend for the drugs to be used unlawfully. And whether or not the drugs will be used within the bounds of state law, the memo notes, would be difficult for a sender to know (the pills have medical uses unrelated to abortion).
“If Donald Trump is reelected president, many prominent opponents of abortion rights will demand that his DOJ issue its own memo, reinterpreting the law to mean the exact opposite: that Comstock is a de facto ban on shipping medication that could end a pregnancy, regardless of its intended use (this would apply to the USPS and to private carriers like UPS and FedEx). ‘The language is black-and-white. It should be enforced,’ Steven H. Aden, the general counsel at Americans United for Life, told me. A broader interpretation of the Comstock Act might also mean that a person receiving abortion pills would be committing a federal crime and, if prosecuted, could face prison time. Federal prosecutors could bring charges against abortion-pill manufacturers, providers receiving pills in the mail, or even individuals.
“The hopes of some activists go further. Their ultimate aim in reviving the Comstock Act is to use it to shut down every abortion facility ‘in all 50 states,’ Mark Lee Dickson, a Texas pastor and anti-abortion advocate, told me. Taken literally, Comstock could be applied to prevent the transport of all supplies related to medical and surgical abortions, making it illegal to ship necessary tools and medications to hospitals and clinics, with no exceptions for other medical uses, such as miscarriage care. https://www.theatlantic.com/magazine/archive/2024/01/anti-abortion-movement-trump-reelection-roe-dobbs/676132/
Justice Ho in the Fifth Circuit appeal panel (a well-known anti-abortion jurist) dissented from the majority opinion among other things because he would have applied the Comstock Act and banned such distribution outright, overturning even the FDA’s initial approval of the pill. Justices Alito and Thomas now have a script to cite to enforce the totxal ban they seem to want in effect already.
“In 1996, Congress added ‘interactive computer service’ to the Comstock Act. See Telecommunications Act of 1996, Pub. L. No. 104-104, § 507(a), 110 Stat. 56, 137. So it’s also illegal to use the internet to ship or receive abortifacients. See 18 U.S.C. § 230(f)(2) (defining “interactive computer service”); id. § 230(f)(3) (‘interactive computer service’ includes ‘the Internet’); Doe v. MySpace, Inc., 528 F.3d 413, 415 (5th Cir. 2008) (“interactive computer service” includes “a Web site”). The FDA’s 2021 Mail-Order Decision violates the Comstock Act. That decision authorizes the dispensing of mifepristone ‘through the mail . . . or through a mail-order pharmacy.’ FDA Letter to American College of Obstetricians and Gynecologists at 2 (Apr. 12, 2021). But ‘us[ing] the mails for the mailing’ of a ‘drug . . . for producing abortion’ is precisely what the Comstock Act prohibits. 18 U.S.C. § 1461. See Alliance, 2023 WL 2913725, at *20 (‘[A] user of those shipping channels violates the plain text merely by knowingly making use of the mail for a prohibited abortion item.’)….
“Moreover, Congress has actually considered amending the Comstock Act to apply only to ‘illegal abortions’—and chosen not to. In 1978, Congress rejected a proposed Comstock Act amendment to prohibit the shipment of ‘any drug, medicine, article, or thing, with the intent that such drug, medicine, article, or thing be used to produce an illegal abortion.’ H.R. 13959, 95th Cong. § 6702(1)(C)(i) (1978) (emphasis added). See also id. § 6701(a)(2) (same). A contemporaneous Congressional report explained: [R]evised title 18 changes current law by requiring proof that the relevant material or object to be used to produce an illegal abortion and that the offender specifically intended the material object to be so used. . . . [A]n abortion is ‘illegal’ if it is contrary to the law of the state in which the abortion is performed. Report of the Subcommittee on Criminal Justice on Recodification of Federal Criminal Law, H.R. Rep. No. 95-29, pt. 3, at 42 (1978) (Emphasis added.)
“Congress also had the opportunity to remove ‘abortion’ from the Comstock Act altogether. See Comstock Cleanup Act of 1996, H.R. 3057, 104th Cong. (1996). See also 142 Cong. Rec. 24313, 24313 (Sep. 24, 1996) (statement of Rep. Pat Schroeder, sponsor of H.R. 3057) (‘[T]he Comstock Act has never been repealed; it is still on the books.’); id. at 24313–14 (‘[T]his body just allowed the Comstock Act to be enforced on the Internet vis-à-vis anything doing with abortion. . . . The Telecommunications Act passed this year extended the Comstock Act’s prohibitions to anyone who uses an interactive computer service.’). But again, Congress declined to remove “abortion’ from the statute. To the contrary, it chose to repeal only the Act’s prohibition on the shipment of contraceptives. See Pub. L. No. 91- 662, §§ 3–4, 84 Stat. 1973, 1973 (1971). So if the FDA wants us to look to the post-enactment history of the Comstock Act rather than its text, that history only reinforces the natural reading of the text. I would set aside the 2021 Mail-Order Decision because it violates the Comstock Act.”
Alliance for Hippocratic Medicine v. U. S. Food & Drug Administration: United States Court of Appeals for the Fifth Circuit: 23-10362 Document: 00516860229 Page: 1 Date Filed: 08/16/2023, at pp. 83-85.
Imagine the national political ramifications if five Supreme Court Justices end the Court’s current term this June by holding that Comstock is alive and well again, and the abortion pill is effectively defunct under a judicially sanctioned nationwide ban, even in states where abortion remains as legal as it was under Roe.