The Missouri atorney general announced on Monday that his office is suing the Food and Drug Administration (FDA) and the Department of Health and Senior Services after they unlawfully approved the shipping of chemical abortion pills in the mail.
Attorney General Andrew Bailey’s suit, which was joined by the states of Idaho and Kansas, comes on the heels of his efforts earlier this year, warning CVS and Walgreens that their plan to use the mail to distribute abortion pills would violate state and federal laws.
Twenty Republican state attorneys general joined in the effort, led by Bailey, who in February said he was doing everything in his power to warn the companies that his office will use “every tool at our disposal to uphold the law.”
“Unelected federal bureaucrats do not have the statutory authority to approve the shipment of these dangerous chemical abortion drugs in the mail,” Bailey said. “The FDA’s guidance is not only unlawful but would cost the lives of both women and their unborn children. I am proud to be leading a coalition of states that halt the FDA’s illegal federal overreach in its tracks.”
Bailey asserts in the lawsuit that the FDA has the “statutory responsibility” of protecting the health, safety and welfare of each American, which includes rejecting or limiting the use of dangerous drugs.
The attorney general says the FDA, which falls under the Biden administration, has failed with that responsibility.
“Specifically, it failed America’s women and girls when it chose politics over science and approved risky, untested chemical abortion drugs for use in the United States,” the lawsuit reads. “And, it has continued to fail them by turning a blind eye to these harms and repeatedly removing even the most basic precautionary requirements associated with the use of these risky drugs.”
Walgreens and CVS first announced their intention to distribute abortion pills in the mail after the Biden administration, in early January, developed a plan which they announced over a year ago, to change a Food and Drug Administration (FDA) rule in a way that would allow companies like Walgreens and CVS to apply for a certification to distribute a two-step abortion-inducing drug.
Before the rule was changed, mifepristone, the first pill used in the two-part abortion process, could be dispensed only by some mail-order pharmacies or by certified doctors or clinics.
By granting the certification, the FDA would be allowing pharmacists to dispense the pill directly to patients upon receiving a prescription from a certified prescriber.
But the attorney generals warn the change is an incorrect reading of what the law allows and would not stand up in court.
In February, the attorney generals said they rejected the Biden administrations “bizarre interpretation,” adding they expect courts will reject it as well.
“Courts do not lightly ignore the plain text of statutes. And the Supreme Court has been openly aversive to other attempts by the Biden administration to press antitextual arguments,” they wrote. “A future U.S. Attorney General will almost certainly reject the Biden administration’s results-oriented, strained reading. And consequences for accepting the Biden administration’s reading could come far sooner.”
Bailey’s lawsuit seeks a preliminary injunction against the 2016 rollback of most of the safety precautions the FDA put in place when it approved mifepristone in 2000; the 2019 FDA approval of generic mifepristone; and the 2021 and 2023 policy allowing these drugs to be sent by mail.
