Conservative States Renew Legal Battle Over Abortion Pill Mifepristone

Four months after the Supreme Court dismissed a significant challenge to the abortion medication mifepristone, conservative states are reigniting the debate surrounding its access through a new lawsuit. With abortion access becoming a critical issue in the presidential election, Missouri, Kansas, and Idaho have joined forces in a federal court in Texas, asking US District Judge Matthew Kacsmaryk to reverse various Food and Drug Administration (FDA) measures that have expanded access to the drug in recent years.

The lawsuit specifically targets efforts that have made mifepristone available via mail and questions the FDA’s approval of a generic version of the drug. It also challenges the elimination of requirements for follow-up doctor visits and the stipulation that prescribers be physicians. The states argue that mifepristone’s widespread availability has led to safety concerns, stating, “These dangerous drugs are now flooding states like Missouri and Idaho and sending women in these states to the emergency room.” However, claims about the drug’s safety have been extensively countered by reputable medical organizations, which highlight that medication abortions account for nearly two-thirds of all abortions in the U.S.

This latest legal action arrives just as abortion becomes a focal point in the presidential race between former President Donald Trump and Vice President Kamala Harris. During a CNN debate in late June, Trump pointed to the Supreme Court’s earlier ruling and expressed his support for it, stating, “The Supreme Court just approved the abortion pill, and I agree with their decision to have done that and I will not block it.” However, in subsequent comments, he did not dismiss the possibility of restricting access to the drug, leaving room for speculation on his true stance.

Conversely, Harris has consistently positioned herself as an advocate for reproductive rights, emphasizing her support for the FDA’s actions to facilitate access to mifepristone. Following the Supreme Court ruling earlier this year, she warned about potential threats to reproductive freedom, stating, “This ruling is not going to change the fact that Trump’s allies have a plan… to eliminate medication abortion through executive action.”

The outcome of the current lawsuit could have significant implications, especially as the country continues to adjust to the Supreme Court’s controversial 2022 decision to overturn Roe v. Wade, which established a constitutional right to abortion. Following that ruling, many conservative states imposed restrictions on abortion procedures, intensifying the scrutiny on abortion pills as a key battleground in the reproductive rights debate.

The recent lawsuit is a response to a Supreme Court ruling earlier this year that determined the original plaintiffs, including doctors and anti-abortion groups, lacked standing to challenge the FDA’s decisions. The unanimous ruling concluded that they had not demonstrated injury from the greater access to the drug resulting from the FDA’s regulatory changes.

After being barred from intervening in the Supreme Court case, the states vowed to amend their initial lawsuit. However, it remains uncertain whether they will be permitted to pursue this new litigation in front of Kacsmaryk, especially considering the Supreme Court’s recent ruling that reversed previous lower court decisions.

Led by Missouri’s Republican Attorney General Andrew Bailey, the states argue that the FDA’s regulations enable violations of state abortion laws by facilitating an out-of-state network for distributing abortion drugs. They also assert that these actions undermine state laws concerning abortions for minors in foster care. The states have reiterated claims made by anti-abortion advocates in earlier cases, including assertions that mailing the drugs contravenes a long-standing federal law prohibiting the shipment of contraceptives and obscene materials via the U.S. Postal Service.

Previously, anti-abortion physicians and organizations sought to eliminate mifepristone entirely from the market. Kacsmaryk, a Trump appointee, had moved to invalidate the FDA’s approval of the drug, but his ruling was ultimately stayed. The 5th U.S. Circuit Court of Appeals upheld the drug’s original approval while siding with those who challenged subsequent FDA actions aimed at broadening access.

Justice Brett Kavanaugh, writing for the unanimous Supreme Court, emphasized that while many citizens have legitimate concerns regarding mifepristone, those objections alone do not grant standing to sue without demonstrating direct harm from the government’s actions.

As the legal battle unfolds, the implications for reproductive rights and access to abortion medication hang in the balance, further complicating the national dialogue surrounding these critical issues.