Dueling briefs by coalitions of pro-life and pro-abortion attorneys general filed in Texas Court

By Dave Andrusko

The fight over medication abortion reached new heights on Friday when pro-life Mississippi Attorney General Lynn Fitch led a pro-life coalition of attorneys general against a pro-abortion coalition led New York Attorney General Letitia James. At issue was the FDA’s decision in 2000 to approve mifepristone and misoprostol—the two drug combination that now accounts for over 50% of the abortions performed in this country–and more recently the FDA decision that would allow pharmacies to dispense the drug if a woman has a prescription.

Last November the Alliance Defending Freedom filed suit in Texas, Bill Pan reported 9.

Specifically, the Alliance claimed that the FDA never studied the safety of those drugs under the labeled conditions of use, disregarded the potential negative effects the hormone-blocking regimen has on pregnant girls, and removed the few safeguards that were in place.

“The only way the FDA was able to approve the drugs was … by characterizing pregnancy as an ‘illness’ and arguing that these dangerous drugs provide a ‘meaningful therapeutic benefit’ over existing treatments,” the complaint reads. “But pregnancy is not an illness, nor do chemical abortion drugs provide a therapeutic benefit over surgical abortion.”

The 22 member pro-life coalition “are not only supporting the challenge, but are also seeking to terminate the new abortion pill-by-mail rule,” Pan reported. In January, the FDA updated labeling for mifepristone (generic for Mifeprex) that would allow pharmacies to dispense the drug if a woman has a prescription. In issuing the new regulations, the FDA formalized a decision made in 2021 to permanently drop the in-person requirement for the distribution of the abortion pill.

“Current federal criminal law plainly prohibits the distribution of abortion-inducing drugs through the mail,” Fitch said.

“Even if the FDA’s approval of mifepristone harmonized with the agency’s own regulations and federal criminal law, those actions would not simply displace state laws regulating abortion,” the brief argued. “States are entitled to enforce their duly enacted laws regulating chemical abortion in the interests of life, health, and safety.”

“The whole point of the Administration’s recent actions is to encourage and achieve evasion of those state laws,” the pro-life AGs said.

Fitch added, “In the Dobbs case, the Supreme Court affirmed that states may enact laws that protect unborn life, women’s health and the integrity of the medical profession, and we will not allow the Biden administration to trample on this fundamental constitutional building block.”

The pro-abortion coalition of 22 attorneys general, led by Democrat James, asked the court to toss the case, claiming that “withdrawing federal approval for mifepristone” would block millions of people from getting “safe abortion care” and “miscarriage management.”

Pan added, quoting from the brief, “The consequences of annulling the FDA’s approval of medication abortion—currently the most common method of obtaining early abortion—would be nothing short of catastrophic.”