Since the end of Roe. v. Wade, the abortion drug mifepristone has increasingly become a flashpoint between pro-life and pro-choice advocates. Four months after the Supreme Court rejected a lawsuit to reverse changes by the Food and Drug Administration that made the drug more widely accessible, a group of conservative states is taking another crack at bringing the issue back to court.
Abortion pills are back on the chopping block
The attorneys general of three GOP-led states — Missouri, Idaho, and Kansas — have banded together to revive and file a new lawsuit against the FDA. The suit hopes to reverse several regulatory changes the agency has made since 2016 that greatly expanded access to mifepristone. The states claim they have standing to sue because the FDA’s actions violate state abortion laws by “enabling an out-of-state abortion drug distribution network.” In addition to some of the points revived from the first case, the new lawsuit also seeks to outlaw giving the medication to anyone under 18. It also wants to tamp down on the “fast-growing practice of prescribing abortion pills through telemedicine and mailing them to patients,” including to states with abortion bans, said The New York Times.
The original lawsuit, which was filed in 2022 by anti-abortion doctors and groups, was unanimously rejected by the Supreme Court in 2022. The court ruled that the plaintiffs had no standing to sue the FDA because they “do not prescribe or use mifepristone” themselves and were instead trying to regulate the actions of others, Justice Brett Kavanaugh said in the court’s opinion in the case. Last year, Missouri, Idaho, and Kansas petitioned to join the suit at the lower court level and were granted the status of intervenors. After the court dismissed the original case, they filed an amended complaint as plaintiffs.
The attorneys general also argued that mailing abortion pills violates the Comstock Act, a “19th-century law that’s laid dormant for decades that bans the mailing of anything related to abortion,” said Forbes. If they successfully convince the court to agree, the ruling could “help anti-abortion rights advocates use that law to ban abortion more broadly.” The act bans not just mailing the pills but any equipment related to abortion. It has been viewed as a “potential way for Republicans to functionally outlaw abortion without imposing a federal ban,” as it would make it “largely impossible to perform the procedure.”
‘A nakedly political and judge-shopping ploy’
The states might have a slight edge over the original plaintiffs regarding having the standing to take on the FDA. Still, their ability to sue and claim the FDA is harming them could face substantial challenges, David S. Cohen, a law professor at Drexel University, said to the Times. It is also questionable that the states filed in the same court where the original group was rejected. “It is a nakedly political and judge-shopping ploy,” Cohen said. If Missouri, Idaho, and Kansas are “really are harmed by these pills,” they should file in their states. But they want to appear before U.S. District Judge Matthew Kacsmaryk, a Trump appointee, so they can “piggyback on this lawsuit that had no standing in the first place, and that shouldn’t be allowed.”
It is ironic that the state’s invocation of the Comstock Act “represents a deliberate effort to upend their sovereign authority over abortion,” Shoshanna Ehrlich said at Ms. Magazine. In doing so, they are “calling upon the power of federal law to cut off access to medication abortion in states where abortion is legal—thus upending their sovereign authority.” The right’s “relentless post-Dobbs crusade” to block access to abortions “represents a power grab by states aimed at forcing pregnant people, including teens, to bear children by legal fiat.”