Ninth Circuit Asks for Briefs in Washington Abortion Pill Suit

The US Supreme Court’s decision to continue allowing wide access to a drug that causes abortion prompted a federal appeals court to order supplemental briefing in a similar case.

The US Court of Appeals for the Ninth Circuit on Thursday told states to address Food & Drug Administration v. Alliance for Hippocratic Medicine, and how it affected the issues being considered by the appeals court, including standing.

The Supreme Court held Thursday that a group of Christian, anti-abortion doctors and an association that represents them didn’t have standing to pursue a challenge to FDA’s regulation of mifepristone. The narrow decision, based solely on the procedural argument, didn’t weigh in on the validity of the agency’s action.

The unanimous decision written by Justice Brett M. Kavanaugh didn’t say if there were other plaintiffs—like states—that would be able to show that they were sufficiently harmed by FDA’s action to bring suit, leaving the subject for another day.

Ninth Circuit judges Judges Sidney R. Thomas, M. Margaret McKeown, and Morgan. B. Christen, could help resolve the question. The judges, who heard oral arguments in mid-March, appeared skeptical of six red states’ argument that they had standing to pursue a claim challenging FDA’s withdrawal of an in-person prescribing requirement in 2023.

“It seems to me that you have a layer by layer upon layer,” of events that have to happen before the state suffers any injury, McKeown said. Maybe a person gets sick, maybe they go to the emergency room and Medicaid pays for it, she said. “Why is this not just too attenuated?”

But the court stayed the appeal later the same day, saying it would wait until after the Supreme Court issued its opinion.

A federal judge in Idaho held in April that the Washington-led group was likely to succeed in arguing that the FDA’s heightened regulation of mifepristone was overly burdensome and not based in science. The judge previously denied the red states’ intervention motion.

Mifepristone is a generic version of a medication that’s part a two-drug regimen intended to induce the termination of pregnancy up to about 10 to 12 weeks. It’s become a target of the anti-abortion movement, as it’s used in over half of abortions in the US.

The US Justice Department represents the FDA. The Washington Attorney General’s Office is lead counsel for the plaintiff states. The Idaho Attorney General’s Office is lead counsel for the intervening states.

The case is Washington v. U.S. Food & Drug Admin., 9th Cir., No. 23-35294, 6/13/24.