Twenty-two Republican AGs support lawsuit to end access to mifepristone abortion drug

[Update: Hours later, 22 Democratic AGs opposed the lawsuit in their own filing.] The filings come in a closely watched case brought in Texas by a conservative group.

[Update: This post was updated at 3:45 p.m. to include discussion of both states’ briefs.]

Nearly two dozen states with Republican attorneys general on Friday announced their support for a lawsuit seeking to end access to the use of mifepristone for medication abortions.

Hours later, nearly two dozen other states, with Democratic attorneys general, announced their opposition to the lawsuit.

The filings came in a lawsuit brought by the right-wing Alliance Defending Freedom this past fall. The case, before U.S. District Judge Matthew Kacsmaryk, has garnered attention due to its extreme requests, its extremist plaintiffs and lawyers, and the extremist judge they sought out to hear the case.

For the past three months, it could be said that this was a case of extremes.

On Friday, however, nearly half of the attorneys general across the country made clear that the effort to end medication abortion is the national Republican position.

In the first brief, led by Mississippi Attorney General Lynn Fitch, she argued for Mississippi and 21 other states, “For two decades, the U.S. Food and Drug Administration has acted to establish a nationwide regime of on-demand abortion by licensing sweeping access to chemical abortion drugs—in defiance of federal and state laws protecting life, health, and safety.” The filing urged the federal court not only to reverse recent changes making medication abortion more easily accessible but also the initial federal approval of mifepristone more than 20 years ago.

Later Friday, New York Attorney General Leticia James was joined by 21 other Democratic attorneys general in opposing the lawsuit and supporting the FDA’s medication abortion decisions.

In the New York-led brief, filed on behalf of 21 Democratic states and Washington, DC, James argued that medication abortion is safe, effective, and indispensable and that the lawsuit’s request to withdraw approval for mifepristone for medication abortion would have “devastating” effects.

In addition to Fitch, here are the attorneys general who signed on to the Republicans’ brief:

“The FDA’s challenged actions on mifepristone are deeply flawed. They defy federal law, flout the public-interest determinations that States have properly made, and undermine the public interest in the enforcement of validly enacted state laws,” Fitch argued for Mississippi and the 21 other states. “These features strongly support injunctive relief against the agency’s actions.”

The brief argued both that the initial approval of mifepristone was improper under FDA rules and that recent measures from the Biden administration to allow medication abortion pills to be mailed are improper because they violate federal criminal law.

The Justice Department and Department of Health and Human Services lawyers have strongly defended the FDA approval and more recent actions, arguing that the plaintiffs lack standing, that the time to bring many of the challenges has long past or that the plaintiffs did not exhaust administrative remedies, and that the challenges would likely fail on their merits.

The Republican AGs’ brief did acknowledge that the FDA has authority to decide “whether mifepristone is ‘safe and effective’ for its intended use.” It claimed, however, that the FDA’s other actions regarding permissible uses represent “broad policy judgments balancing the people’s interests in ‘prenatal life at all stages of development,’ ‘maternal health and safety,’ and ‘the integrity of the medical profession’” — references to state interests highlighted in Justice Samuel Alito’s opinion for the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization.

The Democratic AGs’ brief, meanwhile, explained the safety of medication abortion and questions the plaintiffs’ claims to the contrary. “[E]vidence shows that medication abortion is as safe or safer than numerous other types of FDA-approved drugs and products, including Viagra (four times safer), penicillin (two times safer), and even acetaminophen,” James argued for New York and the 20 other states and DC.

In the latter part of their brief, James presented the consequences for the plaintiffs’ request, claiming they “would be nothing short of catastrophic, causing shock waves nationwide.” The brief went on to highlight effects in states with extreme abortion restrictions, spillover effects on abortion services in states with less restrictive abortion laws, and even effects on access to non-abortion-related services that would result from withdrawing FDA approval for medication abortion.

The underlying request for a preliminary injunction, which the states on Friday supported, remains pending before Kacsmaryk. The request asks Kacsmaryk to order the FDA to withdraw or suspend both its initial approval of mifepristone and the FDA’s more recent actions to allow expanded use of the drug.

Although some reports suggested a ruling could come as soon as Friday, Kacsmaryk, in a Feb. 3 order, mentioned a thus-far-unscheduled injunction hearing. That will happen sometime after briefing is completed — and means a ruling won’t come on the injunction request until sometime after the hearing.

As of now, per a Thursday order, briefing will be complete on Feb. 24. A hearing would follow that, and only then, some time after that, would a ruling from Kacsmaryk be expected.