Amicus Curiae Brief — Food and Drug Administration, et al., Petitioners v. Alliance for Hippocratic Medicine, et al.
Supreme Court briefJan 30, 2024
Ask Donna
What actually matters in this document.
Text
Nos. 23-235 & 23-236
IN THE
Supreme Court of the United States
U.S. FOOD AND DRUG ADMINISTRATION, et al.,
Petitioners,
v.
ALLIANCE FOR HIPPOCRATIC MEDICINE, et al.,
Respondents.
DANCO LABORATORIES, L.L.C., et al.,
Petitioners,
v.
ALLIANCE FOR HIPPOCRATIC MEDICINE, et al.,
Respondents.
ON WRITS OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR FORMER U.S. DEPARTMENT
OF JUSTICE OFFICIALS AS AMICI CURIAE
IN SUPPORT OF PETITIONERS
KIMBERLY A. PARKER
DANIEL S. VOLCHOK
WILMER CUTLER PICKERING
HALE AND DORR LLP
2100 Pennsylvania Ave., NW
Washington, DC 20037
COLLEEN CAMPBELL
ARIELLE HERZBERG
DANIELLE HARTLEY
ANGELA BOETTCHER
WILMER CUTLER PICKERING
HALE AND DORR LLP
1225 17th Street, Suite 2600
Denver, CO 80202
ALAN SCHOENFELD
Counsel of Record
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
(212) 230-8800
alan.schoenfeld@wilmerhale.com
LAUREN IGE
WILMER CUTLER PICKERING
HALE AND DORR LLP
350 S. Grand Ave., Suite 2400
Los Angeles, CA 90071
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................... iii
INTEREST OF AMICI CURIAE................................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ................................................................ 2
ARGUMENT ....................................................................... 4
I.
THIS COURT NEED NOT ADDRESS THE
COMSTOCK LAWS .......................................................... 4
II. THE COMSTOCK LAWS’ SCOPE IS
IRRELEVANT TO THE VALIDITY OF THE
CHALLENGED FDA ACTIONS ..................................... 5
A. FDA Had No Power Or Duty To
Consider The Comstock Laws In
Deciding Whether Or With What Use
Restrictions To Approve Mifepristone .............. 5
B. FDA’s Actions Do Not Purport To
Declare
Any
Distributions
Of
Mifepristone Lawful Under The
Comstock Laws (However Interpreted) ............ 8
III. FDA’S ACTIONS ACCORD WITH THE
COMSTOCK LAWS BECAUSE THE COMSTOCK
LAWS REACH ONLY DISTRIBUTIONS
INTENDED FOR UNLAWFUL ABORTION .................... 8
A. Congress
Enacted
§§1461-1462
Specifically Intending That They Be
Interpreted To Reach Items Only If
Intended For Unlawful Abortion ....................... 9
ii
TABLE OF CONTENTS—Continued
Page
B. Congress Repeatedly Ratified The
Circuits’ Unanimous Interpretation Of
The Comstock Laws ........................................... 12
C. The Comstock Laws’ Text And
Structure Show Congress Intended
That They Reach Only Items Intended
For Unlawful Abortions ..................................... 15
D. The District Court’s Reasoning Is
Thoroughly Flawed............................................. 17
IV. FDA’S ACTIONS ARE CONSISTENT WITH
THE COMSTOCK LAWS EVEN UNDER THE
DISTRICT COURT’S INTERPRETATION...................... 24
CONCLUSION ................................................................. 25
APPENDIX: List of Amici Curiae ................................ 1a
iii
TABLE OF AUTHORITIES
CASES
Page(s)
Bostock v. Clayton County, 140 S. Ct. 1731
(2020) ............................................................................ 23
Bours v. United States, 229 F. 960 (7th Cir.
1915) ................................................................ 10, 16, 21-22
Brown v. Gardner, 513 U.S. 115 (1994) .......................... 18
City of Austin v. Reagan National Advertising
of Austin, LLC, 596 U.S. 61 (2022) ............................ 4
Consumers Union of United States v. Walker,
145 F.2d 33 (D.C. Cir. 1944) .......................... 10, 17, 20
Davis v. United States, 495 U.S. 472 (1990)................... 22
Davis v. United States, 62 F.2d 473 (6th Cir.
1933) ........................................................... 10, 17, 19, 21
Demarest v. Manspeaker, 498 U.S. 184 (1991) .............. 18
Dobbs v. Jackson Women’s Health Organization,
142 S. Ct. 2228 (2022) ........................................... 16, 22
Ex parte Collett, 337 U.S. 55 (1949) ................................ 12
FCC v. NextWave Personal Communications
Inc., 537 U.S. 293 (2003) .............................................. 7
FDA v. Brown & Williamson Tobacco
Corporation, 529 U.S. 120 (2000) ............................... 5
The Fri, 154 F. 333 (2d Cir. 1907) .................................... 25
Gonzales v. Carhart, 550 U.S. 124 (2007) ....................... 22
Griffin v. Oceanic Contractors, Inc., 458 U.S.
564 (1982) ..................................................................... 15
Griswold v. Connecticut, 381 U.S. 479 (1965)................ 13
iv
TABLE OF AUTHORITIES—Continued
Page
Hartford Underwriters Insurance Company v.
Union Planters Bank, N.A., 530 U.S. 1
(2000) ............................................................................ 15
Jama v. Immigration & Customs Enforcement,
543 U.S. 335 (2005) ................................................22-23
Jerman v. Carlisle, McNellie, Rini, Kramer &
Ulrich LPA, 559 U.S. 573 (2010) .............................. 22
King v. Burwell, 576 U.S. 473 (2015) .............................. 15
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ........................... 19
Maislin Industries, U.S., Inc. v. Primary Steel,
Inc., 497 U.S. 116 (1990) ............................................ 25
Merck Sharp & Dohme Corporation v. Albrecht,
139 S. Ct. 1668 (2019) ................................................... 5
Milner v. Department of Navy, 562 U.S. 562
(2011) ............................................................................ 18
Motor Vehicle Manufacturers Association v.
State Farm Mutual Automobile Insurance
Company, 463 U.S. 29 (1983) ...................................... 5
Mutual Pharmaceutical Company v. Bartlett,
570 U.S. 472 (2013) ....................................................... 7
Planned
Parenthood
of
Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992) .......... 14
Poe v. Ullman, 367 U.S. 497 (1961) ................................ 13
Roe v. Wade, 410 U.S. 113 (1973) .................................... 14
Stephenson v. Binford, 287 U.S. 251 (1932) ................... 25
Sullivan v. Finkelstein, 496 U.S. 617 (1990) ................. 23
v
TABLE OF AUTHORITIES—Continued
Page
Texas Department of Housing & Community
Affairs v. Inclusive Communities Project,
Inc., 576 U.S. 519 (2015) ............................................ 11
United States v. 31 Photographs, 156 F. Supp.
350 (S.D.N.Y. 1957) .................................................... 12
United States v. Gentile, 211 F. Supp. 383
(D. Md. 1962) ............................................................... 13
United States v. H.L. Blake Company, 189 F.
Supp. 930 (W.D. Ark. 1960) ....................................... 13
United States v. Nicholas, 97 F.2d 510 (2d Cir.
1938) ....................................................................... 10, 20
United States v. One Package, 86 F.2d 737
(2d Cir. 1936) ........................................ 10, 16-17, 20-21
Yeager v. United States, 557 U.S. 110 (2009)................... 4
Youngs Rubber Corporation v. C.I. Lee &
Company, 45 F.2d 103 (2d Cir. 1930) .... 10, 16, 19, 21
DOCKETED CASES
GenBioPro, Inc. v. Sorsaia, No. 3:23-cv-00058
(D. W. Va.) ..................................................................... 4
STATUTES AND REGULATIONS
5 U.S.C. §706 .....................................................................7-8
18 U.S.C.
§248 ............................................................................... 14
§1461 ............................................................1, 3, 8-22, 24
§1462 ............................................................1, 3, 8-22, 24
§1531 ............................................................................. 22
vi
TABLE OF AUTHORITIES—Continued
Page
19 U.S.C. §1305 ...............................................3, 9, 15-17, 19
21 U.S.C.
§355 ..............................................................................5-7
§355-1 ............................................................................. 6
§811 ................................................................................. 7
§812 ................................................................................. 7
§823 ................................................................................. 7
§841 ................................................................................. 7
§844 ................................................................................. 7
Colorado Rev. Stat. §25-6-403 ......................................... 14
D.C. Code §2-1401.06 (repealed Feb. 23, 2023) ............. 14
New Jersey Stat. §10:7-2 .................................................. 14
Oregon Rev. Stat. §659.880 .............................................. 14
Act of Mar. 3, 1873, ch. 258, 17 Stat. 598 .................... 9, 15
Act of Feb. 8, 1897, ch. 172, 29 Stat. 512........................... 9
Pub. L. No. 60-350, 35 Stat. 1088 (1909) ........................... 9
Pub. L. No. 80-772, 62 Stat. 683 (1948) ........................... 10
Pub. L. No. 81-531, 64 Stat. 194 (1950) ........................... 12
Pub. L. No. 84-95, 69 Stat. 183 (1955) ............................. 12
Pub. L. No. 85-796, 72 Stat. 962 (1958) ........................... 13
Pub. L. No. 91-662, 84 Stat. 1973 (1971) ......................... 13
Violent Crime Control and Law Enforcement
Act, Pub. L. No. 103-322, 108 Stat. 1796
(1994) ............................................................................ 14
Communications Decency Act, Pub. L. No. 104104, tit. V, 110 Stat. 133 (1996) ............................ 14, 24
vii
TABLE OF AUTHORITIES—Continued
Page
21 C.F.R.
§314.105 .......................................................................... 6
§314.125 .......................................................................... 6
48 C.F.R. §47.001 ............................................................... 25
LEGISLATIVE MATERIALS
H.R. Rep. No. 79-152, pt. 2 (1945) ................................... 19
H.R. Rep. No. 80-304 (1947) ..................................11, 18-19
H.R. Conf. Rep. No. 103-488 (1994) ................................ 14
OTHER AUTHORITIES
Contract Carriage by Common Carriers Under
the Shipping Act of 1916, 70 Yale L.J. 1184
(1961) ............................................................................ 25
GAO-08-751, Approval and Oversight of the
Drug Mifeprex (2008)................................................... 6
GAO-18-292, Information on Mifeprex Labeling
Changes and Ongoing Monitoring Efforts
(2018) .............................................................................. 6
Scalia, Antonin & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts
(2012) ............................................................................ 11
INTEREST OF AMICI CURIAE1
Amici are 23 former high-ranking U.S. Department
of Justice officials who served in administrations of both
major parties, including as U.S. Attorney General, Deputy Attorney General, Solicitor General, Assistant Attorney General, and/or U.S. Attorney. Amici were responsible for enforcing federal criminal laws, including
the Comstock laws, 18 U.S.C. §§1461-1462, and represented the United States in criminal matters in all levels
of the judiciary around the country. A full list of amici
appears in the Appendix.
Amici hold diverse views regarding the moral and
jurisprudential questions surrounding abortion, but
agree the Fifth Circuit’s judgment should be reversed.
They further agree that the district court not only erroneously assumed that the Food & Drug Administration
was authorized to consider, interpret, and apply federal
criminal laws as part of its drug-approval process, but
also gravely misinterpreted the Comstock laws, expanding their scope beyond Congress’s intent. While the
Fifth Circuit declined to reach the district court’s holding under the Comstock laws, respondents’ petitionstage briefing indicated they will ask this Court to address that holding. The district court’s errors in interpreting the Comstock laws were serious, and led the
court to improperly reject the holdings of all four courts
of appeals and the construction embraced by the Justice
Department, the sole agency responsible for prosecuting
violations of the Comstock laws. As explained below, the
1
No counsel for a party authored this brief in whole or in part,
and no entity or person other than amici and its counsel made a monetary contribution to fund the preparation or submission of this
brief.
2
Court need not address the Comstock laws at all. But if
this Court does so, amici urge the Court to reject the district court’s interpretation.
INTRODUCTION AND SUMMARY OF ARGUMENT
This Court need not address the district court’s conclusion that the FDA’s 2021 actions violated the Comstock laws because the Fifth Circuit expressly declined
to reach that question. But should the Court address
that conclusion, it should reject any effort by respondents to rely on it. That ruling is erroneous regardless of
how the Comstock laws are interpreted. Thus, the Court
need not address their meaning, but need only make
clear (should respondents re-raise this argument) that
the laws provide no basis to enjoin or invalidate the challenged FDA actions. Regardless, the district court interpreted the laws incorrectly.2
As a threshold matter, the Comstock laws are irrelevant to the validity of the challenged FDA actions.
Congress charged FDA solely with determining
whether a drug is safe and effective. Once FDA determined mifepristone was safe and effective under the
terms of use, the agency was required to approve it;
FDA could not decline to do so based on the Comstock
laws. Nor did FDA’s determinations purport to address
whether distributions of the drug were or were not lawful under the Comstock laws (just as they did not purport to declare whether such distributions were or were
not lawful under other criminal statutes). The Comstock
laws are therefore simply irrelevant to the validity of the
challenged FDA actions.
2
Although the district court’s analysis of the Comstock laws
addressed only FDA’s 2021 actions, this brief’s arguments apply
equally to all of the challenged FDA actions.
3
If the Comstock laws were relevant to those actions,
however, the actions would be valid because they accord
with those laws—both under the district court’s incorrect interpretation and under the correct interpretation
long adopted by the courts and repeatedly ratified by
Congress. Given that, this Court need not even address
the proper interpretation.
If the Court chooses to do so, then it should reject
the district court’s interpretation. That court gravely
misinterpreted the Comstock laws to reach items intended to produce both lawful and unlawful abortions.
As four circuits concluded in decisions issued between
1915 and 1944—decisions resting on lengthy statutory
analyses—the Comstock laws reach the distribution of
items only if intended to produce unlawful abortions. A
Fifth Circuit motions panel here dismissed those decisions as “aging.” Pet. App. 244a. (Pet. App. citations
herein are to the petition appendix in case number 23235.) But these decisions’ interpretation is the only one
that both makes sense of all the Comstock laws—not
just 18 U.S.C. §§1461-1462 but also 19 U.S.C. §1305—
and avoids absurd and likely unconstitutional implications. And critically, this interpretation was adopted by
Congress in 1948 and (if more were needed) further ratified repeatedly since then by Congress’s reenactments
and amendments of the Comstock laws without relevant
alteration. All this likely explains why the district
court’s decision here is the only judicial decision ever to
reject this interpretation. Indeed, another district court
recently noted that “the Comstock Act is currently understood to apply only to use of the mails in an illegal
manner. Courts have held this consistently since 1915.”
4
Doc. 54 at 14, GenBioPro, Inc. v. Sorsaia, No. 3:23-cv00058 (D. W. Va. May 2, 2023).3
Finally, even under the district court’s unprecedented interpretation, the Comstock laws would still allow non-in-person dispensing in various ways. FDA’s
actions therefore do not approve distribution that is categorically prohibited by the Comstock laws, however
those laws are interpreted, and the laws thus provide no
basis for the lower courts’ categorical invalidation of
those actions.
ARGUMENT
I.
THIS COURT NEED NOT ADDRESS THE COMSTOCK
LAWS
The Fifth Circuit expressly declined to reach respondents’ argument that the FDA’s 2021 actions violated the Comstock laws. Thus, the Court need not—and
should not—consider that argument at all: Although a
respondent may defend a judgment on any ground
raised below, Yeager v. United States, 557 U.S. 110, 126
(2009), this Court often declines as a prudential matter
to address in the first instance issues the court of appeals
did not reach. City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. 61, 76-77 (2022) (explaining as a “‘court of final review and not first view,’”
this Court “does not ‘[o]rdinarily … decide in the first
instance issues not decided below’” by the court of appeals (alteration and omission in original)). It should not
do so here.
3
The Fifth Circuit motions panel considering a stay of the district court’s decision declined to “definitively interpret” the Comstock laws, Pet. App. 244a, while the merits panel declined to consider respondents’ Comstock argument, Pet. App. 63a, n.8.
5
II. THE COMSTOCK LAWS’ SCOPE IS IRRELEVANT TO THE
VALIDITY OF THE CHALLENGED FDA ACTIONS
The Comstock laws, however interpreted, are irrelevant here. FDA’s actions do nothing more than what
FDA is authorized to do: assess whether mifepristone
would be safe and effective under specified conditions.
A. FDA Had No Power Or Duty To Consider The
Comstock Laws In Deciding Whether Or With
What Use Restrictions To Approve Mifepristone
As is true with any agency, FDA’s “power to regulate … must always be grounded in a valid grant of authority from Congress.” FDA v. Brown & Williamson
Tobacco Corporation, 529 U.S. 120, 126, 161 (2000). In
terms of approving a drug for use in the United States,
Congress specified that FDA’s role is to assess whether
the drug is safe and effective for the indicated use. If
FDA determines the drug is safe and effective, it must
approve the drug—and that approval serves only to remove one particular legal barrier to the drug’s distribution, i.e., the bar on distribution of drugs not approved
by FDA as safe and effective. Whether any other laws
restrict or prohibit distribution of a drug is a “factor[]
which Congress has not intended [the agency] to consider.” Motor Vehicle Manufacturers Association v.
State Farm Mutual Automobile Insurance Company,
463 U.S. 29, 43 (1983).
The Food, Drug, and Cosmetic Act (“FDCA”) requires that FDA, in deciding whether to approve a drug
application, consider whether the drug will be safe and
effective under the conditions of use described in the
proposed label. See 21 U.S.C. §355(b)(1)(A)(i), (d); Merck
Sharp & Dohme Corporation v. Albrecht, 139 S. Ct. 1668,
1672 (2019). The statute specifies seven “grounds for
6
refusing [a drug] application,” five relating to safety and
efficacy, one requiring the filing of patent information,
and one relating to the label’s accuracy. See 21 U.S.C.
§355(d). The FDCA gives FDA no authority to deny a
drug application for any other reason. To the contrary,
the FDCA commands that, if none of the patent-filing or
safety-and-efficacy grounds for denial are present, FDA
“shall” approve the application. Id.; see also 21 C.F.R.
§§314.105, 314.125. Therefore, FDA cannot deny a drug
application based on any potential restrictions on distribution imposed by the Comstock laws (or any other law
FDA does not administer).
FDA’s framework for “risk evaluation and mitigation strategy” (“REMS”) is similarly focused on safety
and efficacy. The FDCA requires an applicant to propose a REMS if FDA determines one “is necessary to
ensure that the benefits of the drug outweigh the risks.”
21 U.S.C. §355-1(a)(1); see also id. §355-1(a)(2), (b)(1), (4)(5). Accordingly, a REMS must contain means to mitigate risks to patients’ health. See id. §355-1(c), (e)-(f).
Nothing authorizes FDA to consider the implications of
the Comstock laws (or, again, any other law FDA does
not administer) in the REMS process. Nor has Congress
expected FDA to have done so. Indeed, although members of Congress have engaged in exacting oversight of
FDA’s approval of mifepristone, including via initiating
U.S. Government Accountability Office investigations
and subcommittee hearings, they have not questioned
FDA approval on the grounds that the agency failed to
consider the Comstock laws. See GAO-08-751, Approval
and Oversight of the Drug Mifeprex at 1 (2008) (identifying Congressional requesters); GAO-18-292, Information on Mifeprex Labeling Changes and Ongoing
Monitoring Efforts at 28 (2018) (same).
7
That FDA did not consider the Comstock laws in approving mifepristone or in the REMS process is therefore entirely unsurprising. Indeed, it would be not only
unlawful but also entirely impractical for FDA to catalog
and evaluate the countless laws it does not administer
but that nonetheless might apply to the drugs it reviews—including continually monitoring changes in
such laws and reevaluating its prior decisions in light of
those changes.
FDA’s approval, moreover, is merely a necessary
condition for introducing a drug into interstate commerce; the FDCA provides that “[n]o person shall introduce … into interstate commerce any new drug, unless”
FDA has approved the drug. 21 U.S.C. §355(a) (emphasis added); see also, e.g., Mutual Pharmaceutical Company v. Bartlett, 570 U.S. 472, 476 (2013). But FDA approval means nothing with respect to the applicability of
federal laws outside FDA’s purview; FDA’s approval
(and REMS decisions) do not purport to override such
laws. In fact, FDA routinely approves drugs that are
restricted by laws FDA does not administer. One such
law is the Controlled Substances Act, which is enforced
by the U.S. attorney general and criminalizes the distribution, dispensing, and possession of many FDA-approved substances, such as fentanyl and methadone. See
21 U.S.C. §§811(a), 812, 823, 841(a)(1), 844(a).
Finally, respondents’ brief in opposition cited (at 40)
this Court’s observation that the “[Administrative Procedure Act] requires federal courts to set aside federal
agency action that is ‘not in accordance with law’—which
means, of course, any law, and not merely those laws
that the agency itself is charged with administering.”
FCC v. NextWave Personal Communications Inc., 537
U.S. 293, 300 (2003) (emphasis added) (quoting 5 U.S.C.
§706(2)(A)). That is true, but it does nothing to support
8
respondents’ claim that the FDA acted “not in accordance with law,” 5 U.S.C. §706(2)(A), by staying within
the scope of its congressionally delegated authority, authority that does not extend to considering the Comstock laws when determining if a drug is safe and effective for a particular use. Again, the Comstock laws do
not govern FDA’s drug-approval and REMS decisionmaking; they govern the distribution of abortion-producing items.
B. FDA’s Actions Do Not Purport To Declare Any
Distributions Of Mifepristone Lawful Under
The Comstock Laws (However Interpreted)
FDA’s 2021 actions conform to FDA’s limited statutory authority. For example, its 2021 letter referring to
the “dispensing of mifepristone through the mail … or
through a mail-order pharmacy,” J.A. 365, expressed
nothing more than FDA’s determination that such distribution would not undermine mifepristone’s safety or
efficacy. That is, as explained, the only consideration
FDA may assess. The agency certainly did not purport
to opine on whether any particular distributions of mifepristone are lawful under the Comstock laws.
III. FDA’S ACTIONS ACCORD WITH THE COMSTOCK LAWS
BECAUSE THE COMSTOCK LAWS REACH ONLY DISTRIBUTIONS INTENDED FOR UNLAWFUL ABORTION
Because the FDA did not purport in approving mifepristone to interpret or apply the Comstock laws, the
proper interpretation of those laws has no bearing on the
validity of the agency’s challenged actions. The laws’
meaning independently has no relevance here because—
as explained in Part IV—FDA’s actions are consistent
with those laws even as the district court construed
them. But make no mistake: The district court’s interpretation—that 18 U.S.C. §§1461-1462 prohibit
9
distribution of items intended to produce not only unlawful abortions but also lawful ones—is incorrect. Indeed, as every circuit court to address the question has
recognized, that reading is absurd and raises serious
constitutional concerns, especially given the interaction
between §§1461-1462 and §1305. And critically, Congress’s 1948 reenactment of the Comstock laws specifically adopted that interpretation. Congress then repeatedly ratified that interpretation. In reaching its interpretation here, the district court brushed aside this conclusive evidence and committed several other errors.
A. Congress Enacted §§1461-1462 Specifically Intending That They Be Interpreted To Reach
Items Only If Intended For Unlawful Abortion
The Comstock laws were enacted in the late 1800s.
See Act of Mar. 3, 1873, ch. 258, §2, 17 Stat. 598, 599; Act
of Feb. 8, 1897, ch. 172, 29 Stat. 512. In 1909, Congress
revised the Comstock laws to substantially the language
found today at 18 U.S.C. §§1461-1462. One section—
what is now §1461—prohibited “knowingly deposit[ing]”
in the mails “every article or thing designed, adapted, or
intended for preventing conception or producing abortion, or for any indecent or immoral use.” Pub. L. No.
60-350, §211, 35 Stat. 1088, 1129 (1909). Another provision—what is now §1462—prohibited “bring[ing] … into
the United States” and “knowingly deposit[ing] … with
any express company or other common carrier for [interstate] carriage … any drug, medicine, article, or thing
designed, adapted, or intended for preventing conception, or producing abortion, or for any indecent or immoral use[.]” Id. §245, 35 Stat. at 1138. While those provisions speak plainly to reach mailings for “any indecent
or immoral purpose,” §1461 (emphasis added); accord
§1462, they contain no similar language suggesting they
10
reach items related to any abortion or any contraception.
In line with that text, between 1915 and 1944, four
federal circuit courts issued six decisions interpreting
this statutory language. Each one rejected the proposition that these provisions reached all items for preventing conception and producing abortion regardless of the
intended circumstances of their use. The Seventh Circuit, for example, explained that it was not “reasonable”
to suppose Congress intended “the statute [to] cover all
acts of abortion.” Bours v. United States, 229 F. 960,
964-965 (7th Cir. 1915). The Second Circuit likewise observed that “[i]t would seem reasonable” to interpret 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.” Youngs Rubber Corporation v.
C.I. Lee & Company, 45 F.2d 103, 107-108 (2d Cir. 1930)
(emphasis added); accord United States v. Nicholas, 97
F.2d 510, 512 (2d Cir. 1938); United States v. One Package, 86 F.2d 737, 738-739 (2d Cir. 1936). And the Sixth
Circuit adopted the Second Circuit’s reading based on
the “soundness of its reasoning” and because “the statute must be given a reasonable construction.” Davis v.
United States, 62 F.2d 473, 474-475 (6th Cir. 1933). Finally, the D.C. Circuit chose “to follow the interpretation
which has been adopted in other circuits.” Consumers
Union of United States v. Walker, 145 F.2d 33, 33, 35
(D.C. Cir. 1944). No court of appeals has ever adopted a
contrary construction.
In 1948, Congress reenacted these provisions at 18
U.S.C. §§1461 and 1462, without change to the relevant
language. See Pub. L. No. 80-772, 62 Stat. 683, 768-769
(1948). This action—without more—“is convincing support for the conclusion that Congress accepted and
11
ratified the unanimous holdings of the Courts of Appeals” regarding the proper interpretation of the provisions. Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 576 U.S.
519, 536 (2015). That is because “[i]f 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.” Scalia & Garner, Reading Law 322 (2012); accord
Texas Department of Housing, 576 U.S. at 537 (citing
cases to the same effect).
But here there is more: Congress’s attention was
specifically drawn to most of the circuit decisions discussed above. In particular, a note included in the House
Judiciary Committee’s 1947 report accompanying the
bill stated: “The attention of Congress is invited to the
following decisions of the Federal courts construing
[proposed §1461] and section 1462.” H.R. Rep. No. 80304, at A104-A105 (1947). These “decisions” to which
Congress’s “attention” was “invited” were four of the
relevant circuit cases. First, the report explained that
Youngs Rubber concluded that “the more reasonable interpretation” of the language “as used in [proposed
§1461] and section 1462” was “to construe the whole
phrase ‘designed, adapted or intended’ 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.’” Id. at A105 (emphasis added). Next,
the report stated that Nicholas “held that the importation or sending through the mails of contraceptive [or
abortion] articles is not forbidden absolutely, but only
when such articles or publications are unlawfully employed.” Id. (emphasis added). Finally, the report added
that “[t]he same rule was followed” by Davis and One
Package. Id.
12
Given this, Congress understood when it enacted
§§1461-1462 that the language “as used in” those sections had been consistently interpreted to reach items
for producing abortion only if intended to produce unlawful abortion. Under the authorities cited above, the
fact that Congress enacted that language with that understanding and without expressing any rejection of
that interpretation shows conclusively that Congress intended by its enactment of §§1461-1462 to ratify that judicial interpretation. Indeed, when previously faced
with a similar argument made with respect to a revisers’
note to the contemporaneous recodification of the judicial code, this Court has “flatly reject[ed]” the notion
that “Congress did not appreciate what it was enacting.”
Ex parte Collett, 337 U.S. 55, 71 (1949). The same approach is warranted here.
B. Congress Repeatedly Ratified The Circuits’
Unanimous Interpretation Of The Comstock
Laws
While no more is needed to establish that Congress
intended §§1461-1462 to reach abortion items only if intended for unlawful abortion, the decades-long post-1948
dialogue between Congress and the courts confirms that
intent.
For example, in 1950 and again in 1955, Congress revised §§1461-1462 while preserving the key language.
Pub. L. No. 81-531, §1, 64 Stat. 194, 194 (1950); Pub. L.
No. 84-95, §§1-2, 69 Stat. 183, 183 (1955). As explained,
that shows Congress’s intent to ratify the circuits’ unanimous interpretation of the laws. In 1957, a district court
recognized that “[t]he cases” interpreting §§1461-1462
hold “that only contraceptives [and abortion items] intended for ‘unlawful’ use were banned.” United States
v. 31 Photographs, 156 F. Supp. 350, 357 (S.D.N.Y. 1957)
13
(citing Bours, One Package, Nicholas, Youngs Rubber,
Davis, and Consumers Union). The next year, Congress
again revised §§1461-1462 while preserving the abortion-related language—once again ratifying the interpretation that had just been recognized in 31 Photographs. Pub. L. No. 85-796, §2, 72 Stat. 962, 962 (1958).
Not long after that, another district court deemed it
“well established that the defendants should not be convicted [under §§1461-1462] unless it is established beyond a reasonable doubt that at the time they mailed the
sample packages of prophylactics that they intended
them to ‘be used for illegal contraception.’” United
States v. H.L. Blake Company, 189 F. Supp. 930, 934-935
(W.D. Ark. 1960) (emphasis added) (citing Bours, Nicholas, One Package, Youngs Rubber, and Davis). And in
1961, Justice Harlan similarly noted the “judicial interpretation … that the absolute prohibitions of the [Comstock] law … exclude professional medical use.” Poe v.
Ullman, 367 U.S. 497, 546 n.12 (1961) (Harlan, J., dissenting) (citing Youngs Rubber, Davis, and One Package). The following year, still another district court explained that it was “clear under the authorities that in
order to make out an offense under [§§1461-1462], the
Government should be required to allege and prove that
… devices are shipped and received with intent that
they be used for illegal contraception or abortion.”
United States v. Gentile, 211 F. Supp. 383, 385 n.5 (D.
Md. 1962) (emphasis added) (citing Youngs Rubber, Davis, and Nicholas).
Against this backdrop, Congress took up §§14611462 in the early 1970s. And it again left the language of
§§1461-1462 intact with respect to abortion (while removing references to contraception in response to Griswold v. Connecticut, 381 U.S. 479 (1965)). Pub. L. No.
91-662, §§3-4, 84 Stat. 1973, 1973 (1971). Then in 1994
14
and 1996, Congress again amended §§1461-1462 without
material alteration. See Violent Crime Control and Law
Enforcement Act, Pub. L. No. 103-322, 108 Stat. 1796
(1994); Communications Decency Act, Pub. L. No. 104104, tit. V, §507(a), 110 Stat. 133, 137 (1996). These repeated post-1948 ratifications are still more evidence of
Congress’s understanding and approval of the circuits’
unanimous interpretation of §§1461-1462 as excluding
distributions intended for legal abortions.4
Although some of these congressional actions postdate Roe v. Wade, 410 U.S. 113 (1973), and Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992), they are still meaningful because, as the
district court here observed, Roe and Casey “did not prohibit all restrictions on abortions,” Pet. App. 158a. And,
while some states prohibited abortions falling outside
the protections of Roe and Casey, other states permitted
such abortions. See, e.g., Ore. Rev. Stat. §659.880; D.C.
Code §2-1401.06 (repealed Feb. 23, 2023); N.J. Stat.
§10:7-2; Colo. Rev. Stat. §25-6-403. Applying the Comstock laws to the distribution of items for producing
abortion that was lawful in those states, therefore,
would not necessarily have infringed the constitutional
right to abortion and thus would have been an option for
4
In 1994, Congress also enacted the Freedom of Access to
Clinic Entrances (“FACE”) Act, which affirmatively protects access to clinics offering reproductive care, including abortions. 18
U.S.C. §248(e)(5) (defining “reproductive health services” to include
“the termination of a pregnancy”). Congress grounded its authority
to enact the FACE Act on its finding that abortion clinics buy their
“equipment … medicine, medical supplies, surgical instruments and
other supplies” in interstate commerce—a finding that could not be
squared with a position that interstate commerce in items used for
lawful abortions violated the Comstock Act. H.R. Conf. Rep. No.
103-488, at 7 (1994).
15
Congress every time it amended the Comstock laws.
But, as explained, Congress simply reenacted the same
language understood not to reach items related to those
lawful abortions falling outside the scope of Roe and Casey. Thus, Congress’s actions—both before Roe and after it—made clear that Congress intended for the Comstock laws to reach only unlawful abortions.
C. The Comstock Laws’ Text And Structure
Show Congress Intended That They Reach
Only Items Intended For Unlawful Abortions
Even without Congress’s actions in 1948 and thereafter, the Comstock laws’ text and structure would require that §§1461-1462 be interpreted to reach items
only if intended for unlawful abortion.
As this Court has explained, its “duty … is to construe statutes, not isolated provisions.” King v. Burwell, 576 U.S. 473, 486 (2015) (quotation marks omitted).
Sections 1461-1462 must therefore be read in harmony
with 19 U.S.C. §1305(a), which prohibits the “import[ation]” of “any drug or medicine or any article
whatever for causing unlawful abortion” (emphasis
added) and which also derives from the originally enacted Comstock Act, Act of Mar. 3, 1873, ch. 258, §3, 17
Stat. 598, 599. Moreover, statutory “interpretations …
which would produce absurd results are to be avoided if
alternative interpretations consistent with the legislative purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982); see also Hartford Underwriters Insurance Company v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000).
The district court’s interpretation of §§1461-1462 is
not faithful to these canons. Indeed, it creates two absurdities in light of §1305(a). First, it would mean that
items intended for lawful abortion could be imported
16
under §1305(a) but not then distributed under §§14611462, or at least not distributed through the primary
modes of interstate distribution for imported items.
Such a regime makes no sense. Second, it would mean
that items intended for lawful abortion could be imported under §1305(a) but the importer could be prosecuted for doing so under §1462, which prohibits importing abortion-producing items. Creating such a trap—
where a person could be convicted of a crime for an act
that another federal law expressly permits—is not only
senseless but also would raise serious due-process concerns, contrary to this Court’s admonition that “statutes
should be read where possible to avoid unconstitutionality,” Dobbs v. Jackson Women’s Health Organization,
142 S. Ct. 2228, 2276 (2022).
The court of appeals decisions discussed earlier recognized these problems. For example, in One Package
the Second Circuit found it “hard to suppose” that Congress intended that “articles intended for use in procuring abortions were prohibited in all cases” under §§14611462 but “only prohibited when intended for use in an
‘unlawful abortion’” under §1305. 86 F.2d at 739. Concurring, Judge Learned Hand amplified the point, observing that “it is of considerable importance that the
law as to importations should be the same as that as to
the mails; we ought not impute differences of intention
upon slight distinctions in expression.” Id. at 740.
And even apart from §1305, the Seventh Circuit recognized, it is not “reasonable” to suppose Congress intended “the statute [to] cover all acts of abortion.”
Bours, 229 F. at 964. As the Second Circuit elaborated,
“[t]he intention to prevent a proper medical use of drugs
or other articles merely because they are capable of illegal uses is not lightly to be ascribed to Congress.”
Youngs Rubber, 45 F.2d at 108 (emphasis added).
17
Therefore, the court said, it would not be “reasonable”
to read the statute “to forbid the transportation by mail
or common carriage of anything ‘adapted’ … for preventing conception … 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.” Id.
The Sixth Circuit subsequently deemed that “reasoning” “sound[].” Davis, 62 F.2d at 474-475. And the Second Circuit affirmed the reasoning in One Package, rejecting the notion that Congress intended to “bar [distribution of] articles for preventing conception though employed by a physician in the practice of his profession in
order to protect the health of his patients or to save them
from infection,” 86 F.2d at 739; see also id. at 740. Likewise, the D.C. Circuit concluded that, consistent with its
“duty to avoid absurdity or injustice,” the statutory language should not be “tak[en] out of context” but rather
should be construed to make exception for legitimate
medical use. Consumers Union, 145 F.2d at 34-35.
D. The District Court’s Reasoning Is Thoroughly
Flawed
The infirmities with the district court’s reasoning
begin with the court’s dismissal of Congress’s 1948 reenactment of §§1461-1462 and of the relationship between
§§1461-1462 and §1305.
a. The district court relied on precedent stating
that “[w]here the law is plain, subsequent reenactment
does not constitute an adoption of a previous administrative construction.” Pet. App. 152a (alteration in original); see also Pet. App. 153a-155a. That precedent does
not apply here for three reasons. First, Congress’s 1948
reenactment imbued §§1461-1462 with a specific meaning because Congress codified those sections without
modification after its attention was directed to four
18
circuit court cases consistently interpreting those sections to reach items for producing abortion only if intended to produce unlawful abortion. See H.R. Rep. No.
80-304, at A104. That takes this case beyond the ordinary situation of implied congressional ratification. Second, §§1461-1462 do not have the “plain” meaning the
district court claimed. As explained in Part III.C, that
meaning yields both absurdities and constitutional concerns. And third, the precedent the district court cited
involved “clear inconsistency” between the statute’s
plain language and “a previous administrative construction.” Brown v. Gardner, 513 U.S. 115, 121-122 (1994);
see also Demarest v. Manspeaker, 498 U.S. 184, 190
(1991) (“administrative interpretation” was “contrary to
[statute’s] plain” language). Here, there is neither an
“inconsistency” (“clear” or otherwise), nor an “administrative construction,” but rather a judicial one.5
The district court also impugned the doctrine of ratification by reenactment more broadly, hypothesizing
that reenactments could be motivated by other reasons,
such as counteracting a “sunset” provision, laziness, or
inattention. Pet. App. 153a. That simply ignores this
Court’s many cases recognizing and applying the doctrine. In any event, for the reasons given earlier, it is
implausible that Congress did not intend to ratify the
pre-1948 circuit decisions, not only in 1948 itself but also
thereafter.
5
The district court’s reliance on Milner v. Department of Navy
is misplaced. 562 U.S. 562 (2011). In Milner, the Court did not conclude that it needed to honor Congress’s adoption of a particular interpretation. Rather, it rejected the argument that the Court
should embrace a particular statutory construction because lower
courts followed another lower court’s adoption of that construction.
Id. at 576-577.
19
b. The district court separately attacked the ratification argument by denying that there was a judicial
“consensus” against which Congress reenacted the laws.
That too is wrong.
To begin with, however one might parse the relevant Comstock cases, what matters is what Congress
understood them to mean. And as discussed, the 1947
House report gave the cases a consistent reading:
§§1461-1462 reach abortion items “only” when intended
for “unlawful” or “illegal” abortion. H.R. Rep. No. 80304, at A104-A105; see also H.R. Rep. No. 79-152, pt. 2,
at A96-A97 (1945). That is the understanding on which
Congress enacted §§1461-1462 in 1948 and thus that is
the meaning Congress gave those provisions. See Kisor
v. Wilkie, 139 S. Ct. 2400, 2436 (2019) (Gorsuch, J., concurring) (relying on House and Senate reports accompanying the APA to illustrate the contemporary views of
“many members of Congress” regarding Congress’s intention behind the APA). Moreover (and as also discussed), later cases—31 Photographs in 1958, H.L. Blake
in 1960, Justice Harlan’s opinion in Poe in 1961, and Gentile in 1962—reiterated that characterization of the earlier precedents and thus reinforced Congress’s repeated
ratification of that meaning.
Indeed, the circuit decisions themselves recognized
that they embodied a consensus that §§1461-1462, like
§1305, reach items only if intended for unlawful abortion.
Youngs Rubber, for example, cited Bours for the conclusion that “the whole phrase ‘designed, adapted or intended’ … requir[es] an intent on the part of the sender
that the article mailed or shipped by common carrier be
used for illegal contraception or abortion.” 45 F.2d at
108. Similarly, Davis relied on Bours and Youngs Rubber to reach that same conclusion. 62 F.2d at 475. Likewise One Package said “the courts”—Bours, Youngs
20
Rubber, and Davis—“have read an exemption into the
act” embodied in “[t]he word ‘unlawful.’” 86 F.2d at 739.
Nicholas then cited Youngs Rubber, One Package, and
Davis for the proposition that the laws “should be read
as forbidding [distribution of abortion items] only when
unlawfully employed.” 97 F.2d at 512. And Consumers
Union “follow[ed] the interpretation which has been
adopted in other circuits”—citing the Second and Sixth
Circuit decisions—“namely, that Congress did not intend to exclude from the mails properly prepared information intended for properly qualified people.” 145 F.2d
at 35 & n.11.
Despite all this, the district court insisted that the
circuits did not agree on the exemption’s precise scope,
suggesting variation regarding whether it is for “lawful,” “legitimate,” or “[]moral” uses, and whether what is
lawful, legitimate, or moral is determined by state or
federal authority. Pet. App. 157a-158a. But what matters here is that there was a judicial consensus that
§§1461-1462 did not reach items intended for some abortion uses; Congress’s actions in 1948 and later embraced
and ratified that consensus; and therefore, §§1461-1462
indisputably allow some distribution of abortion drugs
through the mails or common carriers in interstate commerce.
Regardless, the courts treated notions of lawful, legitimate, and moral as equivalent. One Package encapsulated this equivalence:
[W]e are satisfied that [the Comstock laws] embraced only such articles as Congress would
have denounced as immoral if it had understood
all the conditions under which they were to be
used. Its design … was not to prevent the importation, sale, or carriage by mail of things
21
which might intelligently be employed by conscientious and competent physicians for the
purpose of saving life or promoting the well being of their patients. The word ‘unlawful’ would
make this clear as to articles for producing abortion.
Id. at 739 (emphasis added); see also Youngs Rubber, 45
F.2d at 108 (construing 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”);
Davis, 62 F.2d at 474 (same).
The district court, however, claimed that the Seventh Circuit’s decision in Bours viewed the Comstock
laws as reflecting a “‘national policy’” disapproving of
abortion. Pet. App. 157a (quoting Bours, 229 F. at 964).
Judge Ho went even further and highlighted the Seventh Circuit’s statement that §§1461-1462 should be construed to “exclude those acts that are in the interest of
the national life” to conclude that the Seventh Circuit
deemed such life-saving abortions the only ones to fall
outside the scope of those provisions. Pet. App. 102a
(quoting Bours, 229 F. at 964). That is wrong. In recognizing that the Comstock laws do not reach abortions
necessary to save life, the Seventh Circuit did not suggest that would be the only circumstance excluded from
§§1461-1462. And, to the extent that Congress’s enactment of the Comstock laws may have reflected any national policy regarding “abortion”—discountenancing it
or otherwise—that policy would extend no further than
what the Comstock laws actually proscribed. As explained, their proscriptions were limited to articles intended for unlawful abortions. See supra pp. 8-17. Neither Judge Ho nor the district court can avoid that conclusion with a textual appeal to policy, particularly
22
where at no time since the original enactment of the
Comstock laws has there been any federal or national
policy that abortion is categorically unlawful (or immoral
or illegitimate). See Dobbs, 142 S. Ct. at 2236 (“many
States in the late 18th and early 19th century did not
criminalize pre-quickening abortions”). Not until 2003
was a federal abortion ban enacted, and it remains very
narrow, focused only on one rarely used method of abortion. See 18 U.S.C. §1531; Gonzales v. Carhart, 550 U.S.
124, 134-137 (2007).
Judge Ho further scrambled the Seventh Circuit’s
language to argue Bours teaches that “‘it is immaterial
what the local statutory definition of abortion is’” to the
meaning of §§1461-1462. Pet. App. 101a-102a. That argument conflates what Bours said about the “definition
of abortion”—that it “must be taken in its general medical sense” and thus “the local statutory definition of
abortion” is “immaterial”—with what particular “acts of
abortion” “the statute … cover[s].” 229 F. at 964. And
regardless, what is dispositive is not how one might read
Bours fresh today but how Congress understood it and
the other cases that had unanimously embraced a particular reading of the Comstock laws prior to Congress’s
1948 reenactment of them.
Finally, the district court suggested there were too
few judicial decisions to establish a consensus. See Pet.
App. 153a n.28. To the contrary, this Court’s precedents
make clear that four circuits is a sufficient number. See
Davis v. United States, 495 U.S. 472, 482 (1990) (ratification based on decisions by two circuits and the Tax
Court); Jerman v. Carlisle, McNellie, Rini, Kramer &
Ulrich LPA, 559 U.S. 573, 590 (2010) (“no reason to suppose that Congress disagreed with [three circuits’] interpretations when it enacted” statute). In contrast, Jama
v. Immigration & Customs Enforcement, 543 U.S. 335,
23
351-352 (2005), rejected as “too flimsy” a ratification argument relying on two circuit decisions. Even then, the
Court didn’t reject the ratification argument solely
based on the number of circuit decisions allegedly supporting a judicial consensus; rather, it found a lack of a
consensus at all. Congress had crafted the statutory provision at issue in Jama out of two predecessor provisions, “only one of which had been construed as petitioner wish[ed].” Id. at 351.
c. The district court (Pet. App. 155a) and Judge Ho
(Pet. App. 103a) pointed to an “unsuccessful[]” attempt
by a congressional subcommittee in 1978 to insert “illegal” into the Comstock laws, and to the accompanying
subcommittee report stating that “current law” was not
limited to items intended for illegal abortion. Pet. App.
103a, 155a-156a. Judge Ho also pointed to unsuccessful
legislation introduced in September 1996 to remove
“abortion” from the Comstock laws. Pet. App. 104a.
Never-enacted bills and statements by legislators on the
meaning of previously enacted laws, however, “should
not be taken seriously, not even in a footnote.” Sullivan
v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concurring). Such sources are not legislative history at all
and “offer[] a particularly dangerous basis on which to
rest an interpretation of an existing law a different and
earlier Congress did adopt.” Bostock v. Clayton County,
140 S. Ct. 1731, 1747 (2020) (quotation marks omitted).
Certainly, such “evidence” cannot overcome the voluminous, and much more reliable, contrary evidence of congressional ratification discussed above.
d. Finally, Judge Ho noted Congress’s 1996 addition to the Comstock laws of the words “interactive computer service” to conclude that “it’s also illegal to use the
internet to ship or receive abortifacients.” Pet. App.
99a-100a. But Judge Ho’s unremarkable observation
24
that Congress amended the Comstock laws to clarify
that its prohibitions applied to materials transmitted via
the internet does nothing to explain how or why the
Comstock laws broadly reach materials related to all
abortions. Indeed, the text of the amendment demonstrates that it merely clarified that existing obscenity
laws applied to the internet. Indeed, the title of the
amending provision is “Clarification of Current Laws
Regarding Communication of Obscene Materials
Through the Use of Computers.” Pub. L. No. 104-104,
§507, 110 Stat. at 137. The text of the amendment itself
further emphasizes that “[t]he amendments made by
this section are clarifying[.]” Id. §507(c), 110 Stat. at 137.
Thus, this amendment does nothing to shed further light
on the scope of materials related to abortion covered by
the Comstock laws.
IV. FDA’S ACTIONS ARE CONSISTENT WITH THE COMSTOCK LAWS EVEN UNDER THE DISTRICT COURT’S INTERPRETATION
Even under the district court’s interpretation of the
Comstock laws, FDA’s 2021 actions would still accord
with those laws. Besides prohibiting distribution by the
U.S. Postal Service (in §1461), the Comstock laws prohibit distribution only if by a “common carrier” “in interstate or foreign commerce.” §1462. They thus do not
prohibit distributions within a state, or interstate distribution by proprietary, contract, or private non-commercial carriers (e.g., the prescriber or a prescriber’s employee). Thus, even under the district court’s reading,
the Comstock laws’ prohibitions leave room for FDA’s
2021 elimination of the in-person dispensing
25
requirements, since mifepristone could still be distributed in various ways outside those laws’ scope.6
CONCLUSION
The Fifth Circuit’s judgment should be reversed.
Respectfully submitted.
KIMBERLY A. PARKER
DANIEL S. VOLCHOK
WILMER CUTLER PICKERING
HALE AND DORR LLP
2100 Pennsylvania Ave., NW
Washington, DC 20037
COLLEEN CAMPBELL
ARIELLE HERZBERG
DANIELLE HARTLEY
ANGELA BOETTCHER
WILMER CUTLER PICKERING
HALE AND DORR LLP
1225 17th Street, Suite 2600
Denver, CO 80202
ALAN SCHOENFELD
Counsel of Record
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
(212) 230-8800
alan.schoenfeld@wilmerhale.com
LAUREN IGE
WILMER CUTLER PICKERING
HALE AND DORR LLP
350 S. Grand Ave., Suite 2400
Los Angeles, CA 90071
JANUARY 2024
6
On the difference between common carriers and other types
of carriers, see 48 C.F.R. §47.001; Maislin Industries, U.S., Inc. v.
Primary Steel, Inc., 497 U.S. 116, 133 (1990); The Fri, 154 F. 333,
338 (2d Cir. 1907); Stephenson v. Binford, 287 U.S. 251, 265-266
(1932); and Contract Carriage by Common Carriers Under the
Shipping Act of 1916, 70 Yale L.J. 1184, 1185 (1961).
APPENDIX
APPENDIX
TABLE OF CONTENTS
Page
List of Amici Curiae .......................................................... 1a
1a
LIST OF AMICI CURIAE
Kent B. Alexander, U.S. Attorney, Northern District of
Georgia (1994-1997)
Leslie R. Caldwell, Assistant Attorney General for the
Criminal Division, U.S. Department of Justice (20142017)
Michael W. Cotter, U.S. Attorney, District of Montana
(2009-2017)
Deirdre M. Daly, U.S. Attorney, District of Connecticut
(2013-2017)
Edward L. Dowd Jr., U.S. Attorney, Eastern District
of Missouri (1993-1999)
Jamie S. Gorelick, Deputy Attorney General, U.S. Department of Justice (1994-1997)
Dwight C. Holton, U.S. Attorney, District of Oregon
(2010-2011)
William C. Killian, U.S. Attorney, Eastern District of
Tennessee (2010-2015)
James A. Lewis, U.S. Attorney, Central District of Illinois (2010-2016)
Loretta E. Lynch, Attorney General of the United
States, U.S. Department of Justice (2015-2017); U.S.
Attorney, Eastern District of New York (1999-2002,
2010-2015)
Kenneth Magidson, U.S. Attorney, Southern District of
Texas (2011-2017)
Bill Nettles, U.S. Attorney, District of South Carolina
(2010-2016)
Denise E. O’Donnell, U.S. Attorney, Western District
of New York (1997-2001)
2a
David W. Ogden, Deputy Attorney General of the U.S.,
U.S. Department of Justice, (2009-2010); Assistant Attorney General for Civil Division, U.S. Department of
Justice (1999-2001)
Sarah R. Saldaña, U.S. Attorney, Northern District of
Texas (2011-2014)
Donald K. Stern, U.S. Attorney, District of Massachusetts (1993-2001)
Thomas Strickland, U.S. Attorney, District of Colorado
(1999-2001)
Anne Tompkins, U.S. Attorney, Western District of
North Carolina (2010-2015)
John W. Vaudreuil, U.S. Attorney, Western District of
Wisconsin (2010-2017)
John F. Walsh, U.S. Attorney, District of Colorado
(2010-2016)
Benjamin B. Wagner, U.S. Attorney, Eastern District
of California (2009-2016)
Seth P. Waxman, Solicitor General of the United
States, U.S. Department of Justice (1997-2001)
Billy J. Williams, U.S. Attorney, District of Oregon
(2015-2021)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.