145 GOP Members of Congress Ask Supreme Court to Slash Access to the Abortion Pill

Republican lawmakers urged the court to declare that the 19th-century Comstock Act means abortion drugs can't be mailed—even to states where abortion remains legal.

145 GOP Members of Congress Ask Supreme Court to Slash Access to the Abortion Pill

Nearly 150 Republican lawmakers asked the Supreme Court Thursday to restrict access to the abortion drug mifepristone—citing a law from 1873—when it hears a case on March 26. In a legal filing known as an amicus brief, 26 Senators and 119 Representatives argue that not only did the Food and Drug Administration not follow proper procedure when it updated the pill’s labeling in 2016 and then allowed telemedicine prescriptions in 2021, but they claim the agency “blatantly disregard[ed] the federal law’s prohibition on the mailing and interstate shipment of abortion-inducing drugs.”

The GOP brief doesn’t refer to that federal law by name, but rather by its federal statute number, 18 U.S.C. 1461 and 1462. But it’s the 19th-century Comstock Act, a zombie law that conservatives want Donald Trump to enforce should he win the presidency in November as a way to ban abortion nationwide without Congress. Read broadly, it could be used to not only ban medication abortion, but by prohibiting shipments of medical supplies used in clinics, it could outright ban abortion procedures in all 50 states. Yes, even ones with laws that protect abortion.

Other amicus briefs in the case point to that horrifying possibility: One filed on Tuesday by former Trump lawyer Jay Sekulow argues that Comstock “makes it a federal offense to mail abortion drugs (or devices or equipment)” and that “the prohibition is simple, complete, and categorical.” Additional briefs that cite Comstock either by name or statute number include those from the group of anti-abortion doctors who sued the FDA in the first place, plus Americans United for Life and the conservative Ethics and Public Policy Center.

This litigation began in late 2022, when anti-abortion doctors (represented by the notorious Christian legal firm Alliance Defending Freedom) sued the FDA saying the agency had improperly approved mifepristone back in 2000. In April, Matthew Kacsmaryk, a Trump-appointed district judge in Texas, ruled that the FDA should revoke approval and yank mifepristone from the market. The FDA appealed and then, in August, the Fifth Circuit ruled that, while the doctors were too late to challenge the drug’s original approval from 2000, they could sue over the FDA’s decision to permit prescriptions via telemedicine, made in 2021, as well as the decision to allow mifepristone to be prescribed through 10 weeks of pregnancy, instead of seven, made in 2016. The FDA appealed that ruling to the Supreme Court, and now here we are.

The list of Republicans who signed on to this filing includes prominent lawmakers like Sen. Ted Cruz (R-Texas), Sen. Josh Hawley (R-Mo.), Rep. Elise Stefanik (R-N.Y.) and Rep. Jim Jordan (R-Ohio). (Now-House Speaker Rep. Mike Johnson of Louisiana signed an earlier brief asking the Supreme Court to uphold Kacsmaryk’s ruling alongside 146 other members of Congress, but did not join this one.) The lead Senate sponsor is Sen. Cindy Hyde-Smith (R-Miss.), the same ghoul who blocked a bill to protect access to IVF on Wednesday. We must also note that Hawley’s wife, Erin Morrow Hawley, is a lawyer for ADF and argued this case in front of both Kacsmaryk and the Fifth Circuit. Before Kacsmaryk was nominated to the federal bench, he donated $500 to Hawley and donated $2,000 to groups associated with Cruz. Both Cruz and Hawley voted to confirm Kacsmaryk to his lifetime seat in June 2019.

By contrast, 263 Democratic lawmakers, including 50 Senators, asked the Supreme Court to reverse the lower court rulings and let mifepristone access remain as it is now. (If you’re interested to know what else conservative politicians have put their names on, check out the 125 people who sponsored a bill that would define life beginning at fertilization with no exception for IVF. If that bill passed, it would have the same effect on fertility treatments as the recent Alabama Supreme Court ruling.)

Here are the Republican signatories on the brief from the Senate and the House of Representatives, respectively, listed in alphabetical order by last name.

U.S. Senators

John Barrasso (WY)*
Marsha Blackburn (TN)*
Mike Braun (IN)*
Katie Britt (AL)
Ted Budd (NC)
Bill Cassidy (LA)
John Cornyn (TX)
Kevin Cramer (ND)*
Mike Crapo (ID)
Ted Cruz (TX)*
Steve Daines (MT)
Deb Fischer (NE)*
Josh Hawley (MO)*
John Hoeven (ND)
Cindy Hyde-Smith (MS)
John Kennedy (LA)
James Lankford (OK)
Mike Lee (UT)
Cynthia Lummis (WY)
Roger Marshall, M.D. (KS)
James Risch (ID)
Marco Rubio (FL)
Rick Scott (FL)*
John Thune (SD)
Roger Wicker (MS)*
Todd Young (IN)

*up for re-election this November

U.S. Representatives:

Robert B. Aderholt (AL–04)
Mark Alford (MO–04)
Rick W. Allen (GA–12)
Jodey Arrington (TX–19)
Brian Babin (TX–36)
Donald J. Bacon (NE–02)
James R. Baird (IN–04)
Troy Balderson (OH–12)
Jim Banks (IN–03)
Cliff Bentz (OR–02)
Jack Bergman (MI–01)
Stephanie Bice (OK–05)
Andy Biggs (AZ–05)
Gus M. Bilirakis (FL–12)
Lauren Boebert (CO–03)
Mike Bost (IL–12)
Josh Brecheen (OK–02)
Ken Buck (CO–04)
Tim Burchett (TN–02)
Michael Burgess, M.D. (TX–26)
Eric Burlison (MO–07)
Kat Cammack (FL–03)
Mike Carey (OH–15)
Jerry L. Carl (AL–01)
Buddy Carter (GA–01)
Ben Cline (VA–06)
Michael Cloud (TX–27)
Andrew S. Clyde (GA–09)
Mike Collins (GA–10)
Elijah Crane (AZ–02)
Dan Crenshaw (TX–02)
John Curtis (UT–03)
Jeff Duncan (SC–03)
Chuck Edwards (NC–11)
Jake Ellzey (TX–06)
Ron Estes (KS–04)
Mike Ezell (MS–04)
Randy Feenstra (IA–04)
Brad Finstad (MN–01)
Michelle Fischbach (MN–07)
Scott Fitzgerald (WI–05)
Charles Fleischmann (TN–03)
Mike Flood (NE–01)
Virginia Foxx (NC–05)
C. Scott Franklin (FL–18)
Russell Fry (SC–07)
Russ Fulcher (ID–01)
Tony Gonzales (TX–23)
Bob Good (VA–05)
Lance Gooden (TX–05)
Paul A. Gosar, D.D.S. (AZ–09)
Garret Graves (LA–06)
Sam Graves (MO–06)
Mark Green, M.D. (TN–07)
Marjorie Taylor Greene (GA–14)
Michael Guest (MS–03)
Harriet M. Hageman (WY)
Andy Harris, M.D. (MD–01)
Diana Harshbarger (TN–01)
Kevin Hern (OK–01)
Clay Higgins (LA–03)
French Hill (AR–02)
Ashley Hinson (IA–02)
Erin Houchin (IN–09)
Richard Hudson (NC–09)
Bill Huizenga (MI–04)
Ronny L. Jackson (TX–13)
Jim Jordan (OH–04)
Mike Kelly (PA–16)
Trent Kelly (MS–01)
David Kustoff (TN–08)
Doug Lamborn (CO–05)
Robert E. Latta (OH–05)
Jake LaTurner (KS–02)
Debbie Lesko (AZ–08)
Barry Loudermilk (GA–11)
Blaine Luetkemeyer (MO–03)
Tracey Mann (KS–01)
Lisa McClain (MI–09)
Dr. Rich McCormick (GA–06)
Patrick McHenry (NC–10)
Carol Miller (WV–01)
Mary Miller (IL–15)
John R. Moolenaar (MI–02)
Alex X. Mooney (WV–02)
Barry Moore (AL–02)
Blake Moore (UT–01)
Nathaniel Moran (TX–01)
Gregory F. Murphy, M.D. (NC–03)
Andy Ogles (TN–05)
Gary Palmer (AL–06)
August Pfluger (TX–11)
Bill Posey (FL–08)
Guy Reschenthaler (PA–14)
John Rose (TN–06)
Matthew Rosendale, Sr. (MT–02)
David Rouzer (NC–07)
Steve Scalise (LA–01)
Austin Scott (GA–08)
Pete Sessions (TX–17)
Adrian Smith (NE–03)
Christopher H. Smith (NJ–04)
Lloyd Smucker (PA–11)
Pete Stauber (MN–08)
Elise Stefanik (NY–21)
W. Gregory Steube (FL–17)
Dale W. Strong (AL–05)
Claudia Tenney (NY–24)
Glenn “GT” Thompson (PA–15)
William R. Timmons, IV (SC–04)
Beth Van Duyne (TX–24)
Tim Walberg (MI–05)
Michael Waltz (FL–06)
Randy Weber, Sr. (TX–14)
Daniel Webster (FL–11)
Brad R. Wenstrup, D.P.M. (OH–02)
Bruce Westerman (AR–04)
Joe Wilson (SC–02)
Rudy Yakym (IN–02)

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