In an amicus brief filed with the Supreme Court, 145 Republican lawmakers encouraged the Court to restrict the abortion medication mifepristone in a case scheduled to be heard on March 26.
The group of Senators and Representatives cite the 1873 Comstock Act, a so-called “zombie law,” meaning a law on the books that has previously been declared unenforceable, returning to life when the Court changes its previous position. As recently as 2022, the Department of Justice indicated that the application of the Comstock Act to the mailing of prescription drugs used for abortions wasn’t applicable to modern circumstances.
The new brief argues that the Food and Drug Administration has violated federal law, following the FDA’s move to approve shipment of abortion medication via telemedicine, writing, “The FDA’s 2021 action sanctions the shipment of abortion drugs, including through mail-order pharmacies, which violates longstanding federal laws. Congress has barred the abortion industry from using the United States Postal Service to mail abortion-inducing drugs, including the chemical abortion regimen of mifepristone and misoprostol.”
Meanwhile, two of the three studies cited in a key Texas lower federal court ruling in 2023 related to the case threatening access to abortion medication have been retracted by their medical publisher, Sage Perspectives. According to reports from the Associated Press, in a retraction notice, Sage Perspectives said a reader contacted the journal with concerns about the nature of the data and whether authors’ affiliations with anti-abortion advocacy organizations presented conflicts of interest.
Per AP, “Sage said in a statement that it asked two experts to conduct an independent post-publication peer review, which found the conclusions ‘were invalidated in whole or in part’ for several reasons, including problems with the study design and methodology and errors in the analysis of the data.”
In January of this year, a separate amicus brief was submitted by the Center for Reproductive Rights, the ACLU and The Lawyering Project in support of the FDA’s actions on mifepristone, outlining how the lower courts in their rulings relied on “patently unreliable witnesses” and “ideologically tainted junk science” that have been “routinely discredited” by other courts. Per a statement from the Center, “leading pharmaceutical companies, medical and health organizations, members of Congress, government officials, rights and justice groups, and other experts have also submitted amicus briefs in support of the FDA.”
Julia Kaye, senior staff attorney with the ACLU's Reproductive Freedom Project, told CBS News, “It’s the Supreme Court's responsibility to determine whether the evidence in the record adequately supports the 5th Circuit's conclusions both that the plaintiffs in this case have standing to bring it and that the courts were right to override the FDA's scientific judgments. Doing so necessarily involves looking critically at witnesses and research cited throughout the 5th Circuit's opinion."
