Three Republican-led states can join in a lawsuit seeking to restrict the availability of the abortion pill mifepristone, a federal judge in Texas ruled Friday, threatening to complicate a closely watched case the U.S. Supreme Court has already agreed to review.
U.S. District Judge Matthew Kacsmaryk in Amarillo said that Idaho, Missouri and Kansas had a right to intervene in the case, which was originally filed against the U.S. Food and Drug Administration by anti-abortion groups, rejecting the FDA's argument that the states had waited too long.
The ruling means that, even if the Supreme Court finds that the anti-abortion groups behind the original lawsuit have no legal standing to sue — a key issue in the case — the states could try to continue the litigation.
The FDA and the offices of the states' attorneys general did not immediately respond to requests for comment.
Mifepristone, approved by the FDA in 2000, is one of two drugs used in medication abortion, which accounts for more than half of U.S. abortions. The recently formed Alliance for Hippocratic Medicine and other groups sued the FDA in 2022, saying it had not adequately considered the risks of the drug when it first approved it, or when it later eased restrictions on its distribution.
Mainstream medical organizations such as the American College of Obstetricians and Gynecologists agree with the FDA that the drug is safe and effective for its approved use of ending a pregnancy within the first 10 weeks.
However, the appeals court found that restrictions on the drug that the FDA has rolled back since 2016 should be reinstated, including a ban on prescribing the drug by telemedicine or sending it by mail. That order is currently on hold, but if it takes effect it could limit access to the drug, particularly in rural areas where women would need to travel long distances to see a doctor in person.
The U.S. Supreme Court said last month that it would hear the FDA's appeal of that decision, though it will not revisit the original 2020 approval.
The states sought to intervene in November. They said that, although they largely ban abortion, their residents had obtained mifepristone elsewhere or received it illegally in the mail, leading public hospitals to incur costs dealing with complications of medication abortions.
In its brief opposing the states' intervention, the FDA argued that the states' motion was made purely to overcome weaknesses in the original plaintiffs' legal standing.
The FDA has argued that those plaintiffs lack standing because they have not shown any concrete injury, instead positing a hypothetical situation in which an anti-abortion doctor might be forced to complete an abortion for a woman suffering a complication from mifepristone use.
The agency said if the Supreme Court found that the original plaintiffs lacked standing, the entire case would need to be dismissed. Allowing the states to join while the case is before the Supreme Court, it said, "will only threaten to complicate and prolong this already-complex litigation."
The states, in a response, disputed that the whole case would have to be dismissed if the Supreme Court found no standing.
Kacsmaryk did not rule on that issue, instead finding that the states had alleged an injury related to the lawsuit, and that their interests were not fully represented by the existing plaintiffs, giving them a right to intervene.
The case is Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, U.S. District Court for the Northern District of Texas, No. 2:22-cv-00223.
For plaintiffs: Erin Hawley of Alliance for Defending Freedom
For the states: Missouri Solicitor General Josh Divine; Idaho acting Solicitor General Joshua Turner; and Kansas Assistant Attorney General Erin Gaide
For the FDA: Kate Talmor of the U.S. Department of Justice
Read more:
US Supreme Court to decide access to abortion pill in major case
Judges issue conflicting abortion-pill injunctions
US appeals court backs abortion pill restrictions; Supreme Court appeal planned
Jumpstart your morning with top legal news delivered straight to your inbox from The Daily Docket.
