Republicans File SCOTUS Brief Against Stay on Mifepristone

By Sandy Fitzgerald 

A group of 147 Republican legislators, representing 37 states, filed an amicus brief Tuesday with the Supreme Court seeking a ruling to deny emergency applications for a stay on the ruling blocking the FDA's approval of the abortion drug mifepristone so that the medication will remain banned.

Rep. August Pfluger, R-Texas, is the lead representative for the House members signing the document, with 125 House members signing the plea. Sen. Cindy Hyde-Smith, R-Miss., is the lead senator signing the measure, with 22 members of the Senate signing. 

The lawmakers used a three-pronged argument in favor of continuing the suspension, ordered by U.S. District Judge Matthew Kacsmaryk in Texas, with the U.S. Court of Appeals for the Fifth Circuit upholding certain restrictions on the drug but not fully revoking the pill's approval. 

The Supreme Court on Friday paused the Fifth Circuit's ruling, ordering the current standard allowing the pills to stay in place until at least Saturday, saying it needed time to consider the Biden administration's emergency request for the stay. 

In their document, the lawmakers argue that the FDA's failure to adhere to the Federal Food, Drug, and Cosmetic Act (FFDCA) drug approval process has created risks to the health and safety of women and girls. 

They also said that the FDA is endangering pregnant teens who are seeking chemical abortion drugs "by unlawfully subverting the pediatric study requirement for approvals," and that the FDA has created "serious hazards for women's health and safety" by allowing chemical abortion drugs to be mail-ordered, "in violation of federal law."

"Congress has carefully considered the approval process for new drugs, instituting safeguards to protect patients' welfare," the document argues, noting that FFDCA ensures that new drugs are safe and effective. 

Further, it says that the Pediatric Research Equity Act (PREA) recognizes that "pediatric patients face unique challenges," so drug assessments must include studies showing a medication's safety and effectiveness for younger patients.

"Congress has also decreed that abortion-inducing drugs are 'nonmailable matter' by the United States Postal Service and common carriers," the brief argues, adding that the ban protects women and girls "from the heightened risks of mail-order chemical abortion drugs."

In conclusion, the lawmakers said they are asking the court to "deny the application for a stay of the District Court's order regarding the FDA's 2016 and subsequent actions because the FDA exceeded the scope of its authorized power, and endangered the health and safety of women and girls seeking chemical abortion drugs."

The filing comes after nearly the entire Democrat congressional delegation sent the court an amicus brief requesting that it stops "dangerous" restrictions on abortion pills. 

All Senate Democrats, except for Sen. Joe Manchin, D-W.Va., signed the brief, as did 203 of the 213 House Democrats, signed to support the Biden administration's appeal to the court that it upholds the FDA's approval on mifepristone, reported The Hill.