FDA Asks Justices to Keep Red States Out of Abortion Pill Fight

The Biden administration and a drugmaker behind an abortion pill are urging the US Supreme Court to turn down a request from three conservative-led states to intervene in a case with major ramifications for reproductive rights.

Filed Thursday by the US solicitor general and Danco Laboratories LLC, the briefs come in the Food and Drug Administration’s and drugmaker’s appeals of a US Court of Appeals for the Fifth Circuit decision cutting down agency decisions on the abortion drug mifepristone.

Core to the dispute is whether the conservative physician groups who brought the litigation had the right to sue in the first place. In January, Idaho, Kansas, and Missouri asked the Supreme Court to intervene in the case, a move tailored for the states to take up the litigation should the justices find the physicians groups lacked standing to sue under the US Constitution.

The Texas federal court where the case had previously been heard granted the states permission to intervene in the litigation. On Thursday, the solicitor general called the states’ request to jump into the battle at the Supreme Court level “remarkable” and said their premise of standing is wrong.

Should the Supreme Court decide the doctors lacked standing “because of the attenuated and speculative nature of their asserted injuries—and thus that this suit was never within the district court’s jurisdiction to begin with—this suit will have to be dismissed whether or not the States have standing,” the government brief said.

Danco, the company behind the mifepristone drug Mifeprex, likewise criticized the states’ efforts, calling their intervention attempt “untimely in the extreme.”

“Allowing the States to join now would severely prejudice Danco,” the drugmaker’s brief said.

The filings come ahead of Supreme Court arguments in the case, scheduled for March 26

A wave of briefs has been filed this week by outside parties in support of the FDA.

The case is FDA v. All. for Hippocratic Med., U.S., No. 23-235, unpublished 2/1/24.