U.S. Supreme Court Rejects States' Bid to Intervene in Abortion Pill Challenge
- February 23, 2024
The U.S. Supreme Court rejected February 20 a motion by three states—Missouri, Idaho, and Kansas—to intervene in an action looking to upend the Food and Drug Administration’s (FDA’s) approval of the abortion pill mifepristone.
The Court in December 2023 agreed to review a Fifth Circuit decision that the FDA improperly lifted certain restrictions on the abortion pill mifepristone that expanded access to the drug. The panel ruling in August 2023 had no immediate impact on the availability of mifepristone since the Supreme Court previously ordered that the status quo under existing regulations remain while the litigation played out. Oral arguments in the case are set for March 26.
The three states sought to intervene to preserve the Court’s review of the merits in case the physician plaintiffs that brought the challenge are found to lack standing. In their motion, the states indicated they would file an amicus brief if the Court denied intervention.
The FDA approved the brand-name version of mifepristone in 2000 for medical termination of pregnancy up to seven weeks. In 2016, the FDA extended the drug’s availability through ten weeks gestation among other changes. The agency further loosened restrictions on the drug in 2021 during the COVID-19 pandemic, including allowing mifepristone to be delivered by mail. Mifepristone and a second drug misoprostol account for about half of abortions nationwide.
The Fifth Circuit partially reversed a ruling in April 2023 by U.S. District Court for the Northern District of Texas Judge Matthew J. Kacksmaryk that granted a preliminary injunction to plaintiff doctors and medical associations who argued the FDA’s fast-track approval of the drug ignored safety concerns and was politically motivated. See Alliance for Hippocratic Med. v. U.S. Food and Drug Admin., No. 2:22-CV-223-Z (N.D. Tex. Apr. 7, 2023).
The appeals court panel held that the challenge to the 2000 approval was untimely but also found that plaintiffs sufficiently demonstrated injuries for standing purposes to challenge the FDA’s regulatory action regarding the drug in 2016 and 2021. The appeals court then concluded that the FDA likely violated the Administrative Procedure Act when it lifted certain restrictions for mifepristone. Alliance for Hippocratic Med. v. Food and Drug Admin., No. 23-10362 (5th Cir. Aug. 16, 2023).
Shortly after the Fifth Circuit decision, the district court granted the states' motion to intervene in the case. However, by that time, the Court had already granted certiorari of the Fifth Circuit's decision.
Food and Drug Admin. v. Alliance for Hippocratic Med., No. 23-235 (U.S. motion for intervention denied Feb. 20, 2024).