Michigan Republicans ask Supreme Court to restrict medication abortion access

By Kyle Kaminski

March 5, 2024

A lawsuit supported by Republicans could disrupt access to the most common form of abortion—even in Michigan, where reproductive rights are protected by the state constitution.

MICHIGAN—Nearly 150 Republican lawmakers, including five US representatives from the state of Michigan, filed a brief with the US Supreme Court last week urging it to significantly restrict access to the nation’s most commonly prescribed form of abortion medication.

Among them: US Reps. Jack Bergman (R-Watersmeet); Bill Huizenga (R-Zeeland); Lisa McClain (R-Bruce Township); John Moolenaar (R-Midland); and Tim Walberg (R-Tipton).

The recent legal filing asks the nation’s top 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.

It’s shaping up to be the biggest legal battle over reproductive healthcare since the Supreme Court overturned Roe v. Wade—and the new brief makes clear that Republicans still want to inject themselves into personal health decisions and peel back reproductive rights nationwide.

Here’s the deal:

In 2022, just a few months after the US Supreme Court overturned Roe and the constitutional right to abortion care, several anti-abortion groups filed a federal lawsuit that sought to limit access to mifepristone, a prescription drug approved through 10 weeks of pregnancy that,  along with a second drug called misoprostol, is used in the majority of abortions nationwide.

Last year, a judge issued a ruling in the case that effectively reinstated some old federal restrictions on mifepristone—limiting access to the drug by prohibiting it from being used after seven weeks of pregnancy, being sent through the mail, or being prescribed via telemedicine.

That ruling was appealed to the US Supreme Court, which temporarily halted the restrictions and agreed to take up the case in December. The same nine judges that overturned Roe will now have the final say in the matter, with oral arguments set to take place on March 26.

For now, access to both mifepristone and misoprostol remains unchanged and the medication remains available in states (like Michigan) where abortion is legal. But the brief filed in the case last week by Republican lawmakers aims to ensure access to the drug is blocked—for good. 

What are Republicans saying?

The brief filed last week argues against allowing access to abortion medication nationwide.

Specifically, Republicans claim 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.”

The long-dormant federal law cited in the GOP’s brief is known as the 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.

It’s also the same statute that has been eyed by conservatives and ex-President Donald Trump as a way to sidestep Congress and ban abortion nationwide—including in states like Michigan.

Read broadly, the Comstock Act could be used to not only ban medication abortion, but block shipments of medical supplies used in clinics and lead to outright abortion bans in all 50 states.

What’s at stake?

A recent story in the New York Times reported that Trump has told advisers and allies that he supports a nationwide abortion ban that would prohibit the procedure after 16 weeks of pregnancy, with exceptions in cases of rape, incest, and to save the life of the mother.

Republican operatives have also reportedly crafted an expansive (and literal) blueprint that lays out in detail how they intend to leverage virtually every agency of the federal government to attack abortion access—including by banning and criminalizing access to abortion medication.

Vice President Kamala Harris warned Michiganders about the Republican scheme last month.

“The people of Michigan cannot sit back and take comfort without also understanding that elections matter—and that there is a full-on, concerted effort to pass a national ban, which would mean the people of Michigan would not be as safe,” Harris told women in Grand Rapids. 

Mifepristone is the only FDA-approved abortion medication. Reproductive rights advocates contend that any decision to curtail access to the drug would ignore decades of evidence and clinical trials that show the drug is safe and effective, and have a disproportionate impact on low-income and underserved communities that face challenges in accessing health care.

Michigan Attorney Dana Nessel—and attorneys general from 23 other states—have also argued that enacting any new restrictions on abortion medication would only disrupt access to healthcare, causing more Michiganders seeking abortions to face undue barriers to care.

“It could endanger scores of women who rely on the availability of mifepristone as a safe alternative to invasive procedures,” Nessel said in a statement. “Research has proven that mifepristone is a safe and reliable reproductive health care option for those who need it.”

Nessel said the proposed restrictions would also lead many women to undergo procedural abortions, push abortion procedures to later in pregnancy, drive up risks, costs, and delays, as well as deprive many Michiganders of access to reproductive healthcare altogether. 

Advocates have also argued that the limiting access to the abortion drug would create confusion among providers, distributors, and pharmacies—ultimately destabilizing the regulatory process for drug approvals, stifling innovation, and slowing the development of thousands of other drugs. 

What happens next?

The Supreme Court is expected to reach a decision in the pending case by the summer. If mifepristone is pulled from the market, doctors will likely be forced to prescribe just misoprostol, the second drug in the two-drug regimen, which is far less effective when prescribed on its own.

A group of more than 600 Democratic legislators from 49 states—including 13 Democratic state lawmakers from Michigan—also reportedly signed another amicus brief to the US Supreme Court, urging the justices to overturn the appellate court decision limiting access to mifepristone.

Signatories from Michigan include: state Reps. Noah Arbit; Erin Byrnes; Jenn Hill; Rachel Hood; Kara Hope; Laurie Pohustky; Carrie Rheingans; Penelope Tsernoglou; as well as state Sens. Mary Cavanagh; Rosemary Bayer; Stephanie Chang; Erika Geiss; and Sean McCann.

Meanwhile, a group of independent pharmacies in states across the country have begun dispensing mifepristone—an action made possible thanks to rules implemented by President Joe Biden’s administration last year. Officials at CVS and Walgreens also reportedly plan to make the medication available in-store in states (like Michigan) where abortion is legal. 

READ MORE: Everything you need to know about medication abortion in Michigan

For the latest Michigan news, follow The ‘Gander on Twitter.

Follow Political Correspondent Kyle Kaminski here.


  • Kyle Kaminski

    Kyle Kaminski is an award-winning investigative journalist with more than a decade of experience covering news across Michigan. Prior to joining The ‘Gander, Kyle worked as the managing editor at City Pulse in Lansing and as a reporter for the Traverse City Record-Eagle.

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