Three conservative-led states – Idaho, Missouri, and Kansas – are pushing back against the Biden administration’s efforts to prevent them from participating in a US Supreme Court battle over access to the abortion drug mifepristone.
In a filing on Tuesday (click here), the states argued that the Biden administration has provided “no persuasive reason” to deny them the opportunity to intervene and demonstrate their standing to continue the legal proceedings.
The case revolves around FDA decisions that have expanded access to mifepristone but were overturned in lower courts. The Biden administration and the drugmaker, Danco Laboratories LLC, have appealed these restrictions, while various groups have filed briefs urging the Supreme Court to maintain access to the drug.
The latest brief comes as part of an ongoing dispute with the Justice Department and Danco regarding the states’ involvement in the case, which is scheduled for arguments on March 26.
The issue of standing is crucial to the litigation, with the Biden administration arguing that the original doctors involved in the lawsuit had no right to challenge the FDA’s decisions. Should the states successfully intervene, they could continue the litigation if the high court finds that the doctors lack standing.
In fact, the three states have already received approval from the US District Court for the Northern District of Texas to intervene in the litigation. They argue that a favorable ruling for the Biden administration would not completely lift the lower court restrictions on mifepristone, such as the ability to mail the drug.
The states claim that they have suffered “sovereign injuries” due to the FDA decisions, which have allowed groups to distribute abortion pills across all 50 states, undermining the states’ ability to enforce their laws. The states contend that the FDA’s decisions also pose a significant threat of preemption to state laws.
The case in question is FDA v. All. for Hippocratic Med., U.S., No. 23-235, brief filed 2/6/24.