(Oregon Right to Life) — More than a hundred Republican lawmakers and 23 U.S. states are calling on the U.S. Supreme Court to restore FDA regulations on the abortion pill mifepristone. The filings come as a federal district court this month reinstated the in-person dispensing requirement for the abortion drug, thereby blocking mail-order abortion nationwide. The case has now gone before the Supreme Court.
On May 1, a three-judge panel on the Fifth Circuit Court of Appeals issued a unanimous ruling blocking a Biden-era 2023 FDA rule change that permitted the abortion pill mifepristone to be prescribed online and sent through the mail. The U.S. Supreme Court has temporarily stayed the ruling.
In their amicus brief, 113 Republican lawmakers – 85 U.S. state representatives, including Cliff Bentz of Oregon, and 26 U.S. senators – urged the Supreme Court to uphold the appellate court’s decision.
“By deregulating chemical abortion drugs and permitting them to be sent through the
mail, the Biden FDA violated that longstanding federal law,” the brief states. “The lawless actions of the Biden FDA have also caused real harm and continue to endanger women and girls undergoing chemical abortions, warranting the preliminary relief granted by the Fifth Circuit.”
The lawmakers highlighted the fact that the rollback of federal regulations on the drug – which works by blocking the growth hormone progesterone, thereby starving the unborn embryo or fetus to death – has also placed women and girls at risk of serious adverse events as well as coercion from abusers who can gain easy access to the pills.
“[M]ail-order abortions administered online cannot ensure that a coercive partner, friend, family member, or caregiver is not in the room with a woman seeking a chemical abortion,” the lawmakers said. “Thus, telehealth ineffectively screens women seeking chemical abortions for domestic violence or coercion, subjecting those women to increased harm.”
“There are legitimate concerns about these drugs putting women and girls at significant risk,” Senate Majority Leader John Thune said in a separate statement. “I urge the Supreme Court to reinstate the safety guardrails that were in place before the Biden administration while the Department of Health and Human Services reviews these drugs.”
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Meanwhile, the 113 lawmakers are not alone in urging the U.S. Supreme Court to uphold the Fifth Circuit’s ruling.
The attorneys general of 23 U.S. states that have laws protecting the unborn – including Idaho, Montana, Utah, and Wyoming – have also filed a brief calling for a reinstatement of FDA regulations on mifepristone.
“After [the Dobbs v. Jackson decision overturning Roe v. Wade], States can now enact and enforce laws that regulate or restrict the availability of abortion,” the attorneys general pointed out. “Amici States… have adopted such laws—including laws that regulate chemical abortion.”
“Rather than respect these States’ efforts to protect prenatal life, the federal government has often undermined them,” the brief continued. The attorneys general noted that the 2023 FDA policy change permitting mail-order abortion “allows out-of-state doctors to prescribe mifepristone and arrange for its shipment to other jurisdictions without regard for the requirements of those States’ laws and largely free from consequence.”
“As the Fifth Circuit explained, there is no legitimate interest in ‘continuing unlawful agency Action,’” they said, adding that “the Fifth Circuit rightly issued a stay,” which, they argued, the U.S. Supreme Court should not vacate.
Amid the ongoing lack of regulations on mail-order abortion drugs, online prescription of mifepristone to people in pro-life states reportedly jumped 25% last year, according to the pro-abortion Guttmacher Institute, prompting renewed calls among pro-life groups for a restoration of the in-person dispensing requirements.
“[T]his new Guttmacher report provides further evidence that stopping telehealth abortions needs to be a top priority for pro-lifers,” Charlotte Lozier Institute scholar Michael J. New wrote in a March 24 piece for National Review.
New argued that the Guttmacher report shows that “pro-life laws are being undermined by the large and growing number of telehealth abortions,” arguing that the Trump administration FDA’s lack of action on the issue “has been detrimental to the health of women and fatal to countless preborn children.”
It remains unclear whether or when the Fifth Circuit Court’s ruling will again take effect. Shortly after the panel issued its decision, U.S. Supreme Court Justice Samuel Alito stayed the ruling, setting a May 11 expiration. On Monday, he extended the stay through 5 PM on Thursday, May 14.
Additional pro-life amicus briefs urging the U.S. Supreme Court to uphold the Fifth Circuit’s decision have been filed by Susan B. Anthony Pro-Life America, 2,794 Women Injured By Abortion, the Ethics and Public Policy Center (EPPC), the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), and the Family Research Council, among others.
