States could take on FDA in abortion pill case

The Supreme Court could rule as early as Thursday in a case that could force the U.S. Food and Drug Administration to reinstate past safety rules for distributing the abortion drug mifepristone.

But some pro-lifers don’t expect that outcome. Given how oral arguments went in March, they’re skeptical the justices will rule in favor of the doctors who brought the case against the FDA. In the meantime, three states are poised to take up the arguments against the federal government. Their readiness gives pro-lifers hope that the FDA will eventually have to account for its lax restrictions on the life-ending drug, regardless of how the court rules in the coming weeks.

During oral arguments, the lawyer for the pro-life doctors argued that the FDA went beyond its authority in removing safety requirements that the doctors say protected women from complications. But during questioning, the justices focused primarily on the issue of standing—whether or not the FDA caused the plaintiffs sufficient harm to justify their lawsuit.

Thomas Jipping, senior legal fellow for The Heritage Foundation, sees an uphill battle for the plaintiffs. “To be candid, that’s a challenging issue to prove,” he said. The doctors in the case, Jipping noted, are pro-life physicians who don’t prescribe abortion pills and aren’t necessarily regularly working in emergency rooms, where they say women will go in increasing numbers after experiencing complications from taking abortion pills without physician supervision.

The doctors want the FDA to reinstate the safety rules, including a requirement to dispense the pills in person. But even some of the conservative justices seemed to think the remedy the doctors requested went beyond their alleged harms, such as having to surgically remove babies in incomplete chemical abortions against their consciences. The court will release its decision sometime by early July.

Erik Baptist is senior counsel with Alliance Defending Freedom, the legal group representing the pro-life doctors in the case. In an article on The Federalist Society blog last week, he argued that a ruling against the pro-life physicians would require the court either to overrule or contradict its precedents in a series of cases granting standing to environmental agencies that sued over harms to endangered wildlife. He maintains that the court will allow the pro-life doctors to continue in the case.

If the court does rule against the doctors, Baptist told WORLD, it could do so in two ways. In one scenario, the justices could say the plaintiffs didn’t sufficiently prove their standing at this point in the case. That would allow the physicians and their lawyers to go back to the lower courts and try again. In the second scenario, the justices could say the doctors may never sue the FDA over how it regulates abortion drugs. That would end the case for the doctors, but attorneys general in Missouri, Idaho, and Kansas are poised to continue the legal battle.

In January, a district court judge granted the motion by those three states to join in the case. The attorneys general also petitioned to intervene at the Supreme Court. They argued they have standing because of harms they face that the pro-life doctors can’t claim. For one, they face monetary harm caused by an increasing number of women coming to emergency rooms in their states because of complications from chemical abortions, racking up costs with Medicaid and other state-funded programs.

“Frankly, I think that’s a pretty good argument,” said Jipping of The Heritage Foundation. “And in other contexts, it’s an argument that courts do recognize. It’s just that it’s different than the argument that the current plaintiffs are making.”

The states also assert that the federal government’s lax rules for distributing the abortion pill harms their sovereign interests in creating and enforcing their own abortion pill laws. They point to organizations that rely on the FDA’s approval of mail-order abortions to send the drugs into states that prohibit the practice. Current laws in Idaho and Missouri generally protect unborn babies from abortion starting at conception. All three states have laws on the books prohibiting the use of telemedicine to prescribe abortion pills, although Kansas’ law is not currently in effect.

“Those states are trying their best to protect women’s health and the unborn lives in their state. They can’t do that effectively or meaningfully if the Biden FDA is allowing mail order chemical abortions to occur in violation,” said Baptist. He said the states have “unassailable standing” in the situation, pointing out that the Supreme Court in recent cases has recognized the ability of states to sue the federal government when it threatens state sovereignty.

The Supreme Court denied the states’ request to intervene ahead of the March oral arguments. Jipping said the states will likely have to file their own new lawsuit, starting over in the lower courts, if the court does rule against the pro-life doctors. But beyond their unique standing arguments, he expects the lawsuit to be largely the same: arguing that the FDA improperly relaxed safety standards for the distribution of the drug.

During oral arguments in March, U.S. Solicitor General Elizabeth Prelogar argued for the FDA that it’s hard to identify anyone who would have standing to sue in this case. Baptist, who formerly worked as an appointed lawyer for the Environmental Protection Agency during the Trump administration, said the federal government often challenges the standing of litigants as a first line of defense. But he said that Prelogar’s argument that no one has standing in this case is “stunning.” He added that the focus on standing distracts from the primary argument in the case: that the FDA was wrong to scrap safety requirements for the abortion pill.

“The issue of standing is just one procedural hurdle and . . . if we were to lose, a procedural setback,” said Baptist. “But one day the FDA is going to have to answer and be held accountable for the actions and the unlawful things it did. And the states are ready to pick up that banner if we cannot proceed.”