Federal judge permits states to resurrect battle over abortion drug clearance

The federal judge who paved a path for abortion drug clearance to reach the Supreme Court has allowed red states to revive the legal battle against mifepristone.

The case, originally brought by the Alliance for Hippocratic Medicine—a group of physicians ideologically opposed to providing abortion services—not only raised questions over the availability of the widely used drug by mail but challenged the Food and Drug Administration’s (FDA's) regulatory authority.

The Supreme Court sided 9-0 with the agency, but not on the merits of the regulator’s authority. Rather, the justices found that the physicians were not harmed by the clearance and thus did not have standing to challenge the regulation—leaving the door open to a future case from a party that could prove injury from the approval.

Idaho, Kansas and Missouri took up that banner in October, arguing in a filing that they have legal standing because broadened availability of the pills “undermine(s) state abortion laws and frustrate(s) state law enforcement.” Mifepristone was first approved in 2000, though the regulator changed the drug’s approved conditions and lowered its adverse event reporting requirement in 2016, then eliminated an in-person dispensing requirement in 2021.

Thursday, U.S. District Judge Matthew Kacsmaryk, a go-to justice for conservative-friendly rulings who had sided with the physicians in 2023, ruled that the states may proceed with their challenge.

The Department of Justice had argued that the states' challenge should have been denied as they are not connected to the northern Texas court, though Kacsmaryk wrote in the ruling that such a question would be addressed later in the process.

“This outrageous case should have been put to bed,” Julia Kaye, a senior staff attorney with the ACLU Reproductive Freedom Project, said in a Thursday statement. “Instead, the same Texas judge who already tried to take mifepristone off the market nationwide has left the door open for extremist politicians to continue attacking medication abortion in his courtroom.”

Kaye went on to note that President-elect Donald Trump will be in a position to decide whether the administration continues to pursue the case, “or else instruct his Department of Justice to ignore the overwhelming scientific evidence and stop defending access to medication abortion. The American people will be watching.”

The Biden administration’s opposition in the original case was joined by Danco Laboratories, mifepristone’s manufacturer, and several industry trade groups from the healthcare and pharmaceutical sectors. Each warned that judiciary intervention could have disastrous impacts on the FDA’s authority to regulate drugs.

It is unclear how the conservative-leaning top court would rule should the issue return with standing, particularly as other rulings from the past term suggest diminished deference to federal agencies’ authority to interpret and enforce regulations.