EPPC Amicus Brief on FDA’s Emergency Motion in Fifth Circuit


Published April 12, 2023

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On April 12, 2023, Distinguished Senior Fellow Ed Whelan filed an amicus brief on behalf of the Ethics and Public Policy Center concerning the FDA’s emergency motion for a stay pending appeal of Judge Matthew Kacsmaryk’s ruling last Friday against the FDA’s approval of the abortion drug mifepristone. The amicus brief, which is essentially the same as the one that Whelan filed in Judge Kacsmaryk’s court, explains that Judge Kacsmaryk correctly interpreted the federal criminal statutes (the so-called Comstock Act, 18 U.S.C. §§ 1461, 1462) that prohibit sending abortion drugs by U.S. mail or by common carrier and rebuts the recent opinion by DOJ’s Office of Legal Counsel on which the FDA relies.


Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.

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