Red States Defend Effort to Join High Court Abortion Pill Case

Three conservative-led states are balking at the Biden administration’s attempt to keep them out of a US Supreme Court fight over access to the abortion drug mifepristone.

In a Tuesday filing, Idaho, Missouri, and Kansas told the Supreme Court that the Biden administration posed “no persuasive reason” not to allow the states to intervene to prove they have standing to carry on litigation.

At issue in the case are FDA decisions expanding access to mifepristone that have been cut down in the lower courts. The Biden administration and drugmaker Danco Laboratories have appealed the restrictions, while several groups have filed briefs with the Supreme Court urging the justices to maintain access to the drug.

The brief comes amid a back-and-forth with the Justice Department and Danco over whether the states can take part in the case, arguments for which are scheduled for March 26.

The standing question is crucial to the litigation as the Biden administration is arguing the doctors who originally brought the litigation had no right to challenge the Food and Drug Administration decisions on mifepristone currently before the justices.

Should the states succeed in their effort to intervene, they could continue the litigation in the event the high court says the doctors lack standing.

At issue in the case are FDA decisions expanding access to mifepristone that have been cut down in the lower courts. The Biden administration and Danco have appealed the restrictions, while several groups have filed briefs with the Supreme Court urging the justices to maintain access to the drug.

The three states have already gotten the go-ahead from the US District Court for the Northern District of Texas to intervene in the litigation.

That, the states say, means that a favorable ruling for the Biden administration wouldn’t entirely free them of lower court restrictions on mifepristone, such as whether the drug could be mailed.

In justifying their own standing to the Supreme Court, the states say they’ve faced “sovereign injuries” via groups relying on a pipeline created via FDA decisions “to mail abortion pills into all 50 States, frustrating the ability of States to enforce their laws.”

The “FDA expressly told the world it is lawful to mail abortion pills into all 50 States,” the brief said. The states added that the FDA decisions “pose a serious threat of preemption to state laws.”

The case is FDA v. All. for Hippocratic Med., U.S., No. 23-235, brief filed 2/6/24.