Judge agrees to allow three states to join in lawsuit against the FDA for its handling of Mifepristone, the abortion pill

By Dave Andrusko

On Friday U.S. District Judge Matthew Kacsmaryk agreed to allow Idaho, Missouri, and Kansas to join in a lawsuit against the FDA over mifepristone, the abortion pill. The Supreme Court has agreed to review a ruling by the U.S. Court of Appeals for the 5th Circuit that sharply curbed but did not eliminate access to mifepristone. Mifepristone is one of the two drugs used in “medication” abortions which now account for over half the abortions performed in the United States.

The original suit was brought by the  Alliance for Hippocratic Medicine, composed of four national medical associations, four doctors, and the Alliance Defending Freedom. They sued the FDA, maintaining “that the agency overstepped its authority, first in approving the abortion drug, and again in waiving safety guidelines on the procedure,” according to Kim Schwartz of Texas Right to Life.

In his April 7, 2023, decision Judge Kacsmaryk accepted the challengers’ position that the FDA had fast-tracked the approval of mifepristone through a process intended for the treatment of life-threatening illnesses. 

Judge Kacsmaryk “agreed with the challengers and suspended both that approval and the later changes to the conditions on the use of the drug – such as allowing the drug to be used through the 10th week of pregnancy, rather than the 7th, and allowing health-care providers who are not physicians to prescribe the drug,” according to Amy Howe. “But although the U.S. Court of Appeals for the 5th Circuit upheld Kacsmaryk’s rollback of the later changes to conditions on the use of the drug, it ruled that the challengers’ efforts to invalidate the FDA’s initial approval of the drug came too late” [].

The justices will hear appeals from the Biden administration and the maker of the drug mifepristone “asking the high court to reverse an appellate ruling that would cut off access to the drug through the mail and impose other restrictions, even in states where abortion remains legal,” Mark Sherman reported for the Associated Press.

Judge Kacsmaryk decision to grant the motion, Tracy Bringhurst wrote,

said that the states motion, “raises a significant amount of allegations,” against the FDA and regarding alleged unlawfulness, that could “affect their interests” and the court found the arguments sufficient. The court specifically agreed with one of the three states arguments that the case does affect them because it affects their economic and sovereign interests. 

The judge furthered that even if he was mistaken in his analyses and the states were not entitled to intervene, the court can still allow them to intervene based on precedents that states courts can allow intervention, when “the application is timely, there is a common question of law or fact and there will be no undue delay or prejudice to the original parties.”

The office of Idaho Attorney General Raúl Labrador’s told KTVB that Labrador was very pleased that the court in Texas recognized Idaho’s standing in the case.

“We intervened over concerns for the safety of Idaho women and the virtually unregulated access to mail-order abortion pills. The Federal Drug Administration’s recklessness puts the lives of both pregnant women and their unborn children in medical jeopardy,” Labrador stated.