In June, we told you that, despite a unanimous Supreme Court ruling, the lawsuit threatening access to the abortion pill nationwide was not actually over yet. It has now officially been resuscitated.
The case was originally filed in November 2022 by a coalition of anti-abortion doctors called the Alliance for Hippocratic Medicine. They challenged mifepristone, a drug used for abortions and miscarriages, by saying that the Food and Drug Administration was wrong to approve the drug and claimed it had injured them by requiring them to treat patients who experience rare complications from the pills, preventing them from helping to bring new life into the world. The Justices ultimately ruled that they weren’t harmed by the drug’s approval in 2000 and thereby couldn’t sue the FDA to try to reimpose outdated restrictions. But another set of plaintiffs was waiting in the wings, and a Texas judge said on Thursday that they could keep the case alive.
Trump-appointed Judge Matthew Kacsmaryk ruled on Thursday that Republican Attorneys General from Idaho, Kansas, and Missouri could continue the litigation in his Amarillo, Texas, courtroom. They have no connection to Texas and seemingly intervened to try to keep the case going in case the Supreme Court ruled against the plaintiffs. (We must also note that voters in Missouri and Kansas supported the pro-choice position in statewide abortion amendments.) The Biden administration Department of Justice argued in November that longstanding legal precedent says the entire case should be dismissed because the original plaintiffs lack standing and Kacsmaryk just ignored that.
The three states are asking for Kacsmaryk to issue an injunction that: ends telemedicine prescriptions of the drug, reverts to three in-person appointments, rolls back approval from 10 weeks of pregnancy to seven, prohibits nurse practitioners from prescribing the pills, withdraws approval for use by minors, and withdraws the 2019 approval of generic mifepristone. (They filed this complaint in October and then re-filed it on Thursday.)
Nearly two-thirds of all reported abortions in 2023 were done with abortion pills, and the requested changes would make the pills much, much harder to get.
“Once the Supreme Court found that the anti-abortion groups who brought the Alliance litigation never had a right to sue in the first place, this outrageous case should have been put to bed,” Julia Kaye, senior staff attorney with the ACLU of Reproductive Freedom Project said in a statement. “Instead, the same Texas judge who already tried to take mifepristone off the market nationwide has left the door open for extremist politicians to continue attacking medication abortion in his courtroom.”
Part of the states’ argument for why increased access to mifepristone has harmed them—and why they should have standing to sue—is that telemedicine prescriptions “undermine state abortion laws and frustrate state law enforcement.” They specifically cite shield laws that permit doctors in protective states to prescribe and send pills to people in states with bans and the complaint includes photos of people preparing packages. (Separately, Texas is suing a New York doctor who mailed pills into the state under a shield law.)
But another part of the complaint is downright creepy pronatalist stuff. They claim that abortion pills are lowering teen birth rates in their states, which could reduce their population and lead to losing seats in Congress and federal funds.
From page 190 of the complaint:
This study thus suggests that remote dispensing of abortion drugs by mail, common carrier, and interactive computer service is depressing expected birthrates for teenaged mothers in Plaintiff States, even if other overall birth rates may have been lower than otherwise was projected.
A loss of potential population causes further injuries as well: the States subsequent “diminishment of political representation” and “loss of federal funds,” such as potentially “losing a seat in Congress or qualifying for less federal funding if their populations are” reduced or their increase diminished.
David Cohen, a law professor at Drexel University Kline School of Law, said the case should have been dismissed and the state AGs have similar problems establishing legal standing as the doctors did. “There are just way too many steps between the FDA approval and the alleged harm that these states face with many intervening actions of third parties, and that usually ends standing.” On top of that, the AGs have a problem with a legal concept known as “redressability”—plaintiffs need to show that if they win their case and get the relief they want, the harm will be alleviated. But they can’t prove that here as many abortion providers have been prepared since the spring of 2023 to offer misoprostol-only abortions. (The typical medication abortion regimen is mifepristone followed by misoprostol, but the second drug is effective on its own and often used in countries where the first isn’t available.)
In all, Cohen called the AGs intervention “a transparent ploy to get before Judge Kacsmaryk, rather than a judge in their own state, and to get appealed to the Fifth Circuit.”
Unlike the original plaintiffs, the states are not asking to have the drug’s FDA approval rescinded, a request that had big pharma companies filing briefs in support of mifepristone manufacturers. But these other changes would still be devastating for abortion access. And as University of California, Davis School of Law professor Mary Ziegler noted, the suit could be something of a Trojan horse: the AGs are also arguing that the drugs can’t be mailed due to the Comstock Act, an anti-vice law from 1873. If the Supreme Court goes for this argument, it could also affect abortions performed in clinics. (Project 2025 calls for the FDA to restore all these restrictions and then reverse its approval of mifepristone, but it appears these anti-abortion lawyers aren’t simply going to wait around and hope that happens.)
Donald Trump gets sworn in on Monday, so his appointees at the FDA and DOJ will be representing the U.S. in this case.
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