Idaho, Kansas, and Missouri’s request to intervene in conservative doctors’ Supreme Court case aimed at striking down FDA safety decisions on the abortion drug mifepristone has broader ramifications, litigation watchers say.
“District court intervention is pretty common. But at the Supreme Court, almost never,” said Alan Morrison, Lerner Family Associate Dean for Public Interest & Public Service at George Washington University’s law school.
The Biden administration is appealing a US Court of Appeals for the Fifth Circuit decision that would block mifepristone from being mailed and taken as far as 10 weeks into a pregnancy. A core question before the justices is whether the conservative physicians behind the lawsuit had standing to sue in the first place.
Should the justices decide the doctors lack standing, the states think they could take up the case. They argue that their standing is clear, as Food and Drug Administration decisions have led to pills being mailed into their states and others, complicating their abilities to enforce local laws.
The justices are slated to consider the states’ request Feb. 16. The intervention request comes ahead of oral arguments in the case, scheduled for March 26.
The intervention effort is “fairly unprecedented, especially so late in the game,” said Suhasini Ravi, an associate with the Health Policy and the Law Initiative at the O’Neill Institute at Georgetown University.
How the Supreme Court handles the intervention request “will change the posturing for future cases,” Ravi said.
‘Unusual’ and ‘Creative’
The Supreme Court isn’t the first venue in which the states tried entering the litigation.
In November, the trio tried their luck at intervention at the US District Court for the Northern District of Texas, where the case originated. In January, Judge Matthew Kacsmaryk gave the states the go-ahead, noting that an adverse outcome in the case could impact how they regulate within their borders.
Now, the states are telling the justices that should the Supreme Court find that the physicians who brought the suit lack standing, the FDA wouldn’t be free of the restrictions placed on mifepristone by the lower court.
The red states’ maneuvering is “unusual, and even creative,” said Julie F. Kay, co-founder and executive director of the Abortion Coalition for Telemedicine.
The states, Kay said, along with the doctors groups that originally brought the lawsuit, are embarking on an “extraordinary and extreme way to rewrite standing,” she said.
“The anti-abortion movement has been very creative in their legal tactics,” Kay said.
Standing in the Way
Legal experts are unsure as to whether the states’ standing arguments stand a chance with the Supreme Court.
“The court bought it last year in the student loan case, so who knows what they’re going to do,” Morrison said, referring to 2023’s Biden v. Nebraska. There, the court said the administration lacked the authority to create a student loan forgiveness program.
The court also decided that Missouri had standing to challenge the program, as it would cost a state nonprofit about $44 million a year in fees to participate.
The Supreme Court “doesn’t let standing stand in its way when it wants to reach the merits,” Morrison said.
Yet another abortion drug case pursued by Democratic states “gets to the core” or whether Idaho, Kansas, and Missouri ultimately have standing, said Thomas Jipping, a senior legal fellow at the Heritage Foundation.
In February 2023, around a dozen states sued the FDA in the US District Court for the Eastern District of Washington to preserve access to mifepristone.
On the same day Kacsmaryk in Texas issued his decision that sought to overturn the FDA’s approval of mifepristone, the Washington federal court blocked the government from restricting access.
In bringing their Washington lawsuit, the liberal-led states “made the exact same standing argument” the conservative-led states are now trying before the justices, Jipping said.
Idaho, Kansas, and Missouri’s intervention attempt is “not some harebrained, out of left field product of someone’s imagination,” he said.
“States that wanted abortion drugs to be legal last year, certainly those were persuasive arguments for their standing. It’d be difficult to argue that states that want abortion drugs to be illegal don’t have the same basis for their standing because their costs are going to be of the same kind,” Jipping said.
Over 20 outside briefs have been filed with the Supreme Court backing the FDA. The briefs come from a wide range of parties, including the pharmaceutical industry, over 200 members of Congress, and researchers, arguing that the outcome of the case has widespread ramifications not just for reproductive rights, but agency authority and drug approvals.
“Remove mifepristone and put the name of your medication in the place of mifepristone. And now you’ll understand the consequences” of the case, Department of Health and Human Services Secretary
The case “is consequential in ways that most people don’t recognize,” Becerra said.