Page:Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (5th Cir. Aug. 16, 2023).pdf/84

 common carrier … any article or thing designed or intended for the … procuring of abortion.”). As currently in force, this provision states: "Whoever brings into the United States … or knowingly uses any express company or other common carrier or interactive computer service … for carriage in interstate or foreign commerce … any drug, medicine, article, or thing designed, adapted, or intended for producing abortion … or [w]hoever knowingly takes or receives, from such express company or other common carrier or interactive computer service … any matter or thing the carriage or importation of which is herein made unlawful … [s]hall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter."

18 U.S.C. § 1462.

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.”).