Three GOP AGs seek to join medication abortion lawsuit, raising SCOTUS questions

A wrench (intentionally?) thrown into the mifepristone case at the district court could upend things at the Supreme Court.

The attorneys general of Missouri, Kansas, and Idaho are seeking to intervene in the lawsuit challenging the federal government’s approval of and rules regarding one of the two drugs used in medication abortion — a move that could upend an already complex procedural and substantive case of great national importance.

While the U.S. Supreme Court considers whether to hear appeals in the case — challenging the U.S. Food and Drug Administration’s approval of and later actions easing access to mifepristone — the attorneys general on Nov. 3 filed a motion at the district court to intervene in the case and bring their own claims against the generic drug’s approval and the eased access to the drug.

The filings — including an extremely anti-abortion complaint they are seeking to file in intervention — came nearly a year after the lawsuit was filed; nearly two months after the case reached the U.S. Supreme Court for its second time this year; and less than a week before the current plaintiffs in the case are due to respond to the petitions at the Supreme Court from the Justice Department and the maker of Mifiprex, Danco Laboratories, seeking review of the decision of the U.S. Court of Appeals for the Fifth Circuit on preliminary relief in the case.

The states’ sought intervention before U.S. District Judge Matthew Kacsmaryk could dramatically alter the pending Supreme Court consideration, given that a significant argument in the case at the high court is whether the current parties bring the challenge have standing.

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Although Kacsmaryk and the Fifth Circuit have found this year that the Alliance for Hippocratic Medicine and similar anti-abortion medical associations have standing to bring the lawsuit based on a conclusion that it’s “fairly likely” that members of the associations will treat people facing “severe complications” resulting from the use of mifepristone and that the lawsuit can address that claimed injury, DOJ and Danco argue that is bunk.

“To describe those theories [of standing] is to refute them,” as Danco put it in its cert petition at the Supreme Court. “This Court has repeatedly rejected theories of standing that rest on a ‘speculative chain of possibilities,’ especially where, as here, those possibilities depend on ‘unfettered choices made by independent actors,’” quoting from prior Supreme Court decisions.

DOJ and Danco are asking the Supreme Court to review that ruling and reverse it, as well as the substantive ruling from the Fifth Circuit that FDA decisions easing access to mifepristone likely should be tossed out. The Fifth Circuit’s ruling would require in-person dispensing of mifepristone and additional restrictions on its use to go back into effect. The anti-abortion medical associations and doctors, meanwhile, also went to the Supreme Court. They argue that if the Supreme Court reviews the case, it should also review — and reverse — the Fifth Circuit’s decision that the challenge to the 2000 approval of mifepristone was untimely. They then want the court to rule that the 2000 approval itself should be tossed out.

All of that has been pending at the Supreme Court — with the associations’ response to DOJ and Danco’s petitions due Thursday and DOJ and Danco’s responses to the associations’ petition due Nov. 12.

It is in that context that Missouri Attorney General Andre Bailey, Kansas Attorney General Kris Kobach, and Idaho Attorney General Raúl Labrador — all Republicans — filed their motion to intervene in the case at the district court. In their Nov. 3 filings, the states argued that they have standing based on alleged direct economic injuries, injuries to their “sovereign interest” in enforcing their laws, and injury to their interests in protecting their citizens’ health.

While it’s not absolutely clear that the states would make a successful standing argument, their likely intervention in the case going forward at the district court nonetheless complicates how the Supreme Court will consider the pending petitions before it.

Why is that?

Look at it in terms of the effects of intervention: If the Supreme Court grants review of the preliminary order currently before it, the states wouldn’t be parties. The court would almost certainly hear the case on both the standing question and the merits questions — taking up all the time and resources, both of the court and those outside of it, of doing so. A Supreme Court ruling that the current parties lack standing would not end the case, though, if the states are granted intervention at the district court.

The case would then continue to final judgment; leading, again, to the Fifth Circuit; and then possible (likely?) back to the Supreme Court. In addition to, perhaps, a new set of questions about standing, the issues on the merits would be considered by the Supreme Court for a second time.

All of that would be extremely inefficient and the sort of situation the Supreme Court desperately tries to avoid.

In fact, the states basically argue a mirror version of this as a reason to grant them intervention in their memorandum filed supporting their request:

The Federal Government’s recent petition for certiorari spends the brunt of its analysis attacking the private plaintiffs’ theories of standing. But in this motion, the States press sovereign and economic harms that cannot be asserted by private plaintiffs. That means that not only can the existing plaintiffs not adequately represent the States’ interests, but there is a serious risk of judicial inefficiency if not all interests are presented at once. Presenting all theories of standing at once ensures that this Court (or appellate courts) can more cleanly get to the merits of this incredibly important issue. And intervention is certainly more efficient than the States bringing a separate lawsuit, the only alternative to intervention.

In short, “We swear we have standing. Let us in this case so you can keep it and we can address this issue, Judge Kacsmaryk.”

While the message sent to Kacsmaryk might be clear — and effective, especially given permissive intervention rules — it’s not quite so clear how this move will be seen at the Supreme Court.

The high court has been dealing with this case since April, when it issued a stay of Kacsmaryk’s order pending the Supreme Court’s eventual resolution of any cert petitions. In September, it got the cert petitions from DOJ and Danco. In October, it got the cert petition from the challengers. Responses are due over the next week, with replies to follow.

Now, all of that is thrown into question by an extremely politicized proposed intervention and new potential complaint in the case.

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What happens now?

There are several possibilities for how the Supreme Court could deal with this — with no clear-cut, obvious answer.

The Supreme Court could go full steam ahead and agree to hear the current case and petitions. I think that’s unlikely given how clearly inefficient and wasteful it could be.

The Supreme Court could deny certiorari. I think that’s even more unlikely given the effects of such a denial — allowing the Fifth Circuit’s ruling to go into effect (including its standing ruling) — and given the fact that the court issued the stay pending cert back in April.

The Supreme Court could hold the petitions, as it sometimes does, while matters develop below. Now, Kacsmaryk has an order in place keeping the district court case from proceeding on the merits until there’s a final appellate resolution on his initial ruling in the case, so nothing much is happening on that front. The Supreme Court could hold the cert petitions until there’s a ruling on the states’ intervention, as a move to confirm that all of the issues with proceeding actually exist. If the states then seek and Kacsmaryk were to issue a separate preliminary injunction for the new plaintiffs, however, that would certainly raise another set of issues for appeal before final judgment. If that happened, though, DOJ could seek immediate Supreme Court review — a move called certiorari before judgment — as a way of getting both preliminary rulings in front of the Supreme Court without having to wait for another appeal at the Fifth Circuit.

Finally, the Supreme Court could also issue a summary reversal, vacating the Fifth Circuit’s ruling — highlighting the standing decision as the reason for the summary reversal so as to not judge the merits — and keeping the stay in place pending the resolution of any appeal of the final judgment in the case. There might be some complications resulting from questions about who is bound by what orders given the likely addition of the new state parties at trial, but that could be resolved rather easily (relatively speaking) as a procedural matter if the Supreme Court has, essentially, committed to keeping mifepristone available on its current terms until it can hear an appeal of the case.

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In short, this is a really complicated development in a case that was already extremely complicated.

What I can say is that the states’ sought intervention below — right at this moment — certainly makes it significantly less likely that the legal challenge to mifepristone will be definitively resolved by the Supreme Court this term.

It is not certain, at this point, what all of the legal effects, let alone political effects, of this are and will be — and there certainly will be discussion about that to come, here and elsewhere — but I hope the above at least sketched out the outlines of what is going on legally.