Republican states unite with pro-life doctors for SCOTUS abortion pill battle

Three Republican attorneys general have asked to join a lawsuit pending before the Supreme Court that could determine whether women have access to the abortion pill, mifepristone. 

Missouri, Idaho and Kansas on Monday jointly filed a motion to intervene in U.S. Food and Drug Administration (FDA) vs. Alliance for Hippocratic Medicine, which, if granted, would allow the states to become plaintiffs in the case. The move is an effort to keep the lawsuit alive if the justices find the pro-life doctors who originally challenged the FDA's approval of mifepristone lack standing to do so.

"This is one of the most important cases before the Supreme Court this term. We're fighting to protect women and their unborn children from these dangerous abortion pills," Missouri Attorney General Andrew Bailey told Fox News Digital in a statement. 

The Supreme Court last month agreed to consider appeals from the Biden administration and drug manufacturer Danco Laboratories defending deregulation of mifepristone, the abortion pill, as part of an effort to make it easier to access and use the drug since the Supreme Court overturned Roe v. Wade. 

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Attorney General Andrew Bailey outside the Supreme Court on Feb. 28, 2023. Missouri, Idaho and Kansas have asked to join a lawsuit challenging the FDA's deregulation of the abortion pill, mifepristone. (Valerie Plesch/Bloomberg via Getty Images)

In its landmark June 2022 decision, the court ruled in Dobbs v. Jackson Women’s Health Organization that the U.S. Constitution does not guarantee the right to an abortion and that the matter should be decided by the states. In the aftermath, 14 states have banned abortion at all stages of pregnancy, with some exceptions, and two others have banned abortion once a fetal heartbeat is detected, which is around six weeks of gestation.

The case now pending before the court concerns pro-life doctors and medical groups that sued the FDA in 2022, alleging that the agency unlawfully approved mifepristone in 2000 and that the drug is unsafe. 

Mifepristone, known by the brand name Mifeprex, is a pill taken with misoprostol in a two-drug regimen that first deprives an unborn baby of hormones it needs to stay alive and then causes cramps and contractions to expel the dead fetus from the mother's womb.

In a highly controversial ruling, the district court in Texas where the case originated halted the FDA's approval of mifepristone, triggering an appeals process that has now landed before the Supreme Court. 

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Mifepristone is typically used in combination with misoprostol to bring about a chemical abortion during pregnancy and manage early miscarriage. (Soumyabrata Roy/NurPhoto via Getty Images)

The Biden administration and Danco are asking the high court to reverse an appellate ruling that would cut off access to the abortion pill through the mail and impose other restrictions, even in states where abortion remains legal. The restrictions include shortening from the current 10 weeks to seven weeks the time during which mifepristone can be used in pregnancy. The nine justices rejected a separate appeal from abortion opponents who challenged the FDA's initial approval of mifepristone as safe and effective in 2000.

The case will be argued in the spring, with a decision likely by late June, in the middle of the 2024 presidential and congressional campaigns.

Before the Supreme Court agreed to hear the appeal, Idaho, Kansas and Missouri moved to intervene in the case in the original district court. Texas U.S. District Judge Matthew Kacsmaryk allowed the three states to join the lawsuit on Jan. 12, 2024, but by then the Supreme Court had already agreed to hear the case. 

Now, the Republican attorneys general say the Supreme Court should allow them to join the lawsuit as plaintiffs, asserting there are injuries their states have suffered that the pro-life doctors and medical groups are unable to address in court. They claim that abortion rights organizations have shipped abortion pills into their states, with the assistance of the FDA, in violation of state abortion bans.

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The U.S. Supreme Court will rule on the legal challenges to the FDA's deregulation of the abortion pill sometime this spring. (AP Photo/Mariam Zuhaib, File)

"FDA's actions impose substantial monetary and sovereign harm on the States. The private plaintiffs have no capacity to assert the States' interests. So if this Court denies intervention and holds that the private plaintiffs lack standing, the States may be forced to wait for relief until this Court resolves a future emergency application or certiorari petition by Petitioners," the states told the court in a legal filing.

Bailey, in the filing, also pointed to data that shows thousands of women have traveled out of state to purchase mifepristone and then return to Missouri. "The Federal Government admits that 5 to 8 percent of these women experience significant complications after returning home," the filing states. 

"Intervention would also promote efficiency," the attorneys general argued, observing that their separate challenge to the abortion pill is likely to end up before the court "within months" anyway. 

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Should the Supreme Court decline their motion to intervene, the Republicans said they "are happy simply to submit an amicus brief." 

"I am very pleased the district court in Texas has recognized Idaho’s standing in this case.  We intervened over concerns for the safety of Idaho women and the virtually unregulated access to mail-order abortion pills," Idaho Attorney General Raul Labrador told Fox News Digital in a statement. "The Federal Drug Administration’s recklessness puts the lives of both pregnant women and their unborn children in medical jeopardy."

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"Biden is beholden to the nation’s most radical abortion extremists so the FDA is allowing the shipment of chemical abortion pills," Kansas Attorney General Kris Kobach said. "The FDA lacks the statutory authority to do so. And that’s why Kansas is suing."

The FDA has defended its approval of mifepristone and said the drug is safe when used correctly.

"The FDA approved Mifeprex more than 20 years ago based on a thorough and comprehensive review of the scientific evidence presented and determined that it was safe and effective for its indicated use," the FDA's website states.

Alliance Defending Freedom senior counsel Erik Baptist, who is representing the private plaintiffs, expressed optimism that the Supreme Court will ultimately come down on their side.

"Women should have the ongoing care of a doctor when taking high-risk drugs," Baptist said. "The FDA betrayed women and girls when it removed safety standards that it previously deemed necessary for women’s health and well-being. The FDA should do the right thing and protect women and girls. Three courts have already agreed with us, and we are hopeful that the U.S. Supreme Court will also agree." 

Fox News Digital's Danielle Wallace, Greg Wehner and the Associated Press contributed to this report.