Red states’ legal maneuvers to restrict access to abortion medication will live on despite a loss this week in a federal appeals court.
The US Court of Appeals for the Ninth Circuit on Wednesday shot down a request by Idaho and six other states to wade into a lawsuit between Democratic-led jurisdictions and the Biden administration over the abortion drug mifepristone. A three-judge panel found the conservative states had different motives than their liberal counterparts and couldn’t show a direct enough injury from the FDA’s decision-making to warrant their intervening in the legal battle.
The decision is a victory for blue states, who are suing the FDA to tear down restrictions on the drug, though it won’t ultimately stop Idaho and other conservative states’ leaders from using the courts to limit mifepristone access.
“Any opportunity they have to go to a court and ask the court to take away access to mifepristone, they’re taking that opportunity,” said Julia Marks, an attorney with women and LGBTQ interest group Legal Voice. Her group filed a brief in the Washington case.
Idaho, along with Missouri and Kansas, is waging another legal battle with the Biden administration over mifepristone in the US District Court for the Northern District of Texas.
That’s the court where physician group the Alliance for Hippocratic Medicine persuaded Judge Matthew Kacsmaryk to restrict access to the drug, a fight that wound its way up to the Supreme Court and resulted in a victory for the FDA as the plaintiffs lacked standing to sue. The case returns to Texas, where Kacsmaryk has allowed Idaho and the other two conservative states to take up the battle that the physicians had started.
Now, with the Texas legal battle expected to rise through the courts yet again, attorneys say the Washington case, which will now proceed without the red states’ intervention, could provide a counter. While the Ninth Circuit denied Idaho’s intervention, the blue states’ battle plays on and could result in a conflicting decision with the Texas outcome and end up with the medication abortion fight back to the Supreme Court.
The Washington lawsuit “is very strategically important” to “ensure there isn’t this one narrative about the safety of mifepristone and how the FDA is regulating the drug,” said Greer Donley, a University of Pittsburgh law professor.
“Both sides are unhappy with the FDA. Both sides think the FDA is doing the wrong thing in different directions, and you might have courts that come out saying the exact opposite,” Donley said.
‘Safety Net’
While the physicians’ case in Texas made its way to the Supreme Court, the Washington case provided “a safety net” for the liberal states involved, Marks said.
In Texas’ Alliance for Hippocratic Medicine v. FDA, Judge Kacsmaryk ruled that mifepristone was improperly approved. Later that day, in a case brought by Washington and other mostly Democrat-led states, Judge Thomas O. Rice of the US District Court for the Eastern District of Washington blocked the FDA from making changes to the drug that would make mifepristone less available.
“These dueling orders conflicted with one another. The order in the Washington case was more or less a win for FDA and could be seen as a win for the FDA at the time in that it instructed FDA not to alter the status quo of mifepristone,” said Joshua Oyster, partner at Ropes & Gray.
Idaho, Iowa, Montana, Nebraska, South Carolina, Texas, and Utah then tried to intervene in the Washington case.
In June, after the Supreme Court issued its decision in the Alliance case—finding the physicians didn’t have standing to sue—Idaho told the Ninth Circuit that the justices’ reasoning for denying the physicians group standing leads to “the exact opposite outcome” in their own request.
Because of FDA decisions that “allow mifepristone to be prescribed without an in-person physician visit and shipped to patients without an in person pharmacy visit, it is foreseeable that more women will experience harm from the drug and require more emergency room or urgent care visits,” Idaho argued. And since the red states “indisputably pay for a portion of those visits through Medicaid and the like,” they have reason to sue.
However, the Ninth Circuit on Wednesday denied the request. In the decision, Judge Sidney R. Thomas wrote the conservative states couldn’t “intervene to pursue separate relief” from that sought by Washington and the other states.
“The complaint does not demonstrate an injury-in-fact because it depends on an attenuated chain of healthcare decisions by independent actors that will have only indirect effects on state revenue,” Thomas wrote.
Now, Washington and the other liberal states could ultimately settle with the Biden administration in a way that cuts against Republican-led states’ interests, Josh Blackman, professor at the South Texas College of Law, said.
Consider if the Biden administration “doesn’t actually oppose Washington” state in the litigation, Blackman said, and instead the parties “reach some sort of collusive settlement that actually provides broad protection for mifepristone.”
Had the other states been able to intervene, they would have been able to object, Blackman said. “If you’re not a party, you can’t object,” he said.
Wednesday’s decision paves the way for the Supreme Court to enter the battle once more.
While the justices in the Alliance case found the physicians didn’t have the right to challenge FDA decisions on mifepristone, they didn’t preclude others from taking up the cause.
In January, Judge Kacsmaryk gave Idaho, Missouri, and Kansas the green light to intervene in the physicians’ case at the lower court level.
And should that case work its way through the Fifth Circuit while the Washington case works its way past the Ninth Circuit, attorneys say there could be conflicting rulings that push the Supreme Court to take up the issue again.
‘An Uphill Battle’
The Washington and Texas cases both challenge FDA safety decisions known as risk evaluation and mitigation strategies (REMS) on mifepristone. And others are also making similar challenges in court.
In the US District Court for the Western District of Virginia, abortion providers sued the FDA to make abortion medication more available. The lawsuit, which also had been paused for the Supreme Court mifepristone case, said the FDA’s decisions were beyond the agency’s statutory authority and in violation of the US Constitution’s equal protection guarantee of the Due Process Clause because they reduce health-care access.
Another case, the US District Court for the District of Hawaii’s Chelius v. Becerra, was initially brought in 2017 over mifepristone prescription requirements limiting access. The case had been stayed and closed. However, it was reopened after plaintiffs brought an amended challenge over later FDA decisions.
“For a long, long time, medical organizations have come to the conclusion that the REMS are completely medically unnecessary, serve no medical benefit, and should be removed,” Donley said.
Yet in order for the liberal states to succeed in having mifepristone REMS eliminated, the Washington court would need to “get into the weeds of FDA’s scientific decision making,” Oyster said.
“Historically, it’s not been something that the courts have done to second-guess these types of FDA decisions,” Oyster said. “The plaintiff states have an uphill battle.”
Other Supreme Court decisions from this year could factor in as well, Donley said.
One is Loper Bright Enterprises v. Raimondo. There, the justices overturned Chevron deference, a doctrine under in which courts deferred to an agency’s reasonable interpretation of unclear laws. The other, Corner Post v. Board of Governors, gives plaintiffs more time to sue agencies over regulations.
“FDA still gets some favor by being an expert agency. But the extent of that, I think, is still very much unclear after those decisions,” Donley said. “The Supreme Court is basically saying administrative agencies are not going to be given the same deference” they had before.
