Abortion Pill Case Spotlights How State AGs Can Play Pivotal Role

The US Supreme Court will soon decide its first case on abortion since its landmark Dobbs decision. After the March 26 oral arguments in FDA v. Alliance for Hippocratic Medicine, many expect the court will dispose of the case on standing grounds, particularly given the justices’ interest in standing during oral arguments.

But few have pointed out the possibility that, because of a legal maneuver by state attorneys general in the district court, the case may be before the court again in relatively short order. The legal move—intervention—highlights the strategic role that state attorneys general can play in high-stakes litigation.

The Supreme Court case centers on challenges brought by a group of doctors, dentists, and medical groups to two administrative actions by the Food and Drug Administration (one in 2016 and one in 2021). These actions relaxed certain FDA regulations for mifepristone, a drug used as part of a protocol to end a pregnancy in its early stages.

In November 2023, three states—Missouri, Idaho, and Kansas—filed a motion to intervene as additional plaintiffs in Alliance for Hippocratic Medicine v. FDA, pending in the Northern District of Texas. An appeal of the district court’s preliminary injunction in the case was concurrently pending before the Supreme Court.

Within a month of the Supreme Court granting certiorari, the district court granted the states’ motion to intervene, reasoning that the three states met the requirements for intervention as of right and permissive intervention. Ten days later, the same three states moved to intervene in the Supreme Court.

The states described the motivation behind their attempt to intervene at this stage: “Intervention would ensure the Court can reach the merits because State standing here is so well established that the Federal Government in effect conceded it below at oral argument.”

Standing has been a persistent issue for the plaintiffs throughout the case’s long trajectory. The plaintiffs assert that the FDA’s loosening of restrictions on mifepristone renders it foreseeable that more individuals will experience adverse effects from the medication and seek out one of their members for treatment, thereby giving them a stake in the litigation. But the FDA argues that this reasoning relies on a “long and attenuated causal chain” that is insufficient for standing.

The states’ motion to intervene attempted to remedy standing issues in two ways. First, the attorneys general contended that, because the district court had allowed the states to intervene below, thus making them a party to the litigation in the lower court, the states are now “beneficiaries” of the district court’s orders and adjudications.

Therefore, even if the Supreme Court concluded that the private plaintiffs lacked standing, the FDA (according to the states) would remain subject to district court’s preliminary injunction limiting the availability of mifepristone.

Second, the attorneys general argued that the states’ intervention here would promote efficiency by supplying state standing and allowing the court to reach the merits of the case. As the three attorneys general contended, “Missouri, Idaho, and Kansas assert many harms the private plaintiffs cannot … These include direct monetary harm to state-run insurance programs and hospitals, and harm to the States’ sovereign interests in creating and enforcing laws.”

Without intervention, a dismissal on the grounds that the private plaintiffs lack standing would leave the preliminary injunction in place, prompting another round of appeals that could once again reach the Supreme Court, the attorney generals argued.

The FDA challenged the states’ arguments in turn. It disagreed with the states’ assertion that the district court’s preliminary injunction couldn’t be disturbed, noting the attorneys general “cite no precedent or principle” to support the assertion that a “district court that grants preliminary relief to parties lacking Article III standing can insulate its error from review” by allowing third parties to intervene.

A Supreme Court ruling that the private plaintiffs lack standing, moreover, would effectively nullify the states’ intervention at the district court because the legal effect of the decision would be that the district court “never had jurisdiction over this case” in the first place, the FDA wrote. Finally, the FDA challenged the sufficiency of the states’ own interest in the case, arguing that their asserted monetary and sovereign injuries are too attenuated to satisfy Article III standing.

The Supreme Court denied the states’ motion to intervene. But its decision, issued without legal analysis, leaves a thorny procedural question unanswered: Will the states’ successful intervention at the district court allow them to revive the case even if the court concludes that the private plaintiffs lack standing?

The answer depends in large part on the decision ultimately issued by the court. Short of an explicit order from the justices instructing the district court to dismiss the case, the district court could rely on the states’ status as intervenors to permit them to continue pursuing the litigation—on different theories of standing—after the case is remanded. And the case could be back at the Supreme Court in short order.

In any event, the states’ attempt to intervene gestures at the strategic role attorneys general can play in cases like the mifepristone litigation, where issues of standing are hotly litigated. Unlike private plaintiffs, attorneys general can contend they have special status as litigants and can seek to put forth different arguments and (arguably) less attenuated theories of injury.

In so doing, they may seek to leverage tools like intervention to supply standing where private plaintiffs otherwise cannot—and potentially reshape the outcome of a case.

The case is FDA v. Alliance for Hippocratic Medicine, US, No. 23-235, awaiting decision.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Michelle Kallen is partner at Jenner & Block with focus on complex matters before federal and state appellate courts. She is former solicitor general of Virginia.

Peggy Xu is an associate at Jenner & Block.

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