Florida Republicans ask Supreme Court to restrict access to medication abortion

Opponents of the Republican lawmakers’ petition argue that this is a ploy to ban abortion nationwide without Congress.

Florida Republican Senators Rick Scott and Marco Rubio were among nearly 150 Republican lawmakers in Congress who filed a petition last week asking the US Supreme Court to restrict access to the abortion pill mifepristone. 

The legal filing asks the court to restrict access to mifepristone—one of two drugs used in more than half of abortions nationwide—by prohibiting it from being used after seven weeks of pregnancy, being sent through the mail, or being prescribed via telemedicine.

In the legal filing, the 26 Senators and 119 Representatives argued that the US Food and Drug Administration didn’t follow proper procedure when it allowed telemedicine prescriptions in 2021 and “blatantly disregarded the federal law’s prohibition on the mailing and interstate shipment of abortion-inducing drugs.” They also claimed that the agency failed to follow proper procedure when it updated the pill’s labeling in 2016.

The federal law cited in the Republicans’ brief is the 1873 Comstock Act—which makes it a federal crime to to send or deliver “obscene, lewd or lascivious” material through the mail or by other carriers, and specifically includes items used for abortion or birth control.

The law has not been enforced for the better part of a century, but has recently become part of conservative efforts to restrict abortion access. Another brief in the case filed by former Trump lawyer Jay Sekulow also argues that the Comstock Act “makes it a federal offense to mail abortion drugs (or devices or equipment).” Additional briefs that cite Comstock include those from Americans United for Life and the conservative Ethics and Public Policy Center.

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Scott and Rubio were joined in signing the petition by Florida Republican Reps Kat Cammack, Gus M. Bilirakis, C. Scott Franklin, Bill Posey, W. Gregory Steube, Michael Waltz, and Daniel Webster.

Opponents of the Republican lawmakers’ petition argue that this effort to revive the dormant law is a ploy to ban abortion nationwide without congressional approval. Under this extreme interpretation of the Comstock Act, any clinic that receives medical supplies shipped across state lines could be found in violation of the law, effectively putting abortion access at risk in all 50 states, including those with laws protecting it. Critics also warn that the law could be used to ban other medications besides those designated for abortion. 

How the case began

In late 2022, anti-abortion doctors represented by the Christian legal organization Alliance Defending Freedom sued the FDA, alleging that the agency had improperly approved mifepristone back in 2000. In April of 2023, U.S. District Judge Matthew J. Kacsmaryk said that the Food and Drug Administration’s approval of mifepristone more than two decades ago violated federal rules. Despite overwhelming evidence to the contrary, the Donald Trump appointee said the FDA overlooked “legitimate safety concerns” with the pill, which has been available since 2000. 

Kacsmaryk’s ruling was appealed to the US Supreme Court, which temporarily halted the restrictions and will hear the case on March 26.

A long record of opposing reproductive rights

The brief is just the latest effort from Scott and Rubio to restrict access to abortion.

In 2021, both Florida senators voted to advance South Carolina Sen. Lindsey Graham’s 20-week nationwide abortion ban. Scott also co-sponsored the abortion ban that Graham reintroduced in January of 2021, which had Rubio’s backing. That bill would have banned abortion after 20 weeks and would have imposed prison terms of up to five years and/or fines on doctors and providers who violated this act.

Both senators have also consistently supported Florida Gov. Ron DeSantis 15-week abortion ban, which, if upheld by the state Supreme Court, would allow the governor’s six-week abortion ban to take effect 30 days later. 

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