BREAKING: The GOP’s New Lawsuit Against Mifepristone

Weeks before the election, Republican AGs seek to roll back access to abortion medication

With just weeks before the presidential election, three Republican-led states have quietly filed an amended complaint against the FDA in the hopes of rolling back access to mifepristone across the country.

The new filing from the Attorneys General of Kansas, Missouri, and Idaho seeks to make the abortion medication illegal for minors entirely, and targets shield state abortion providers who’ve been shipping abortion medication to patients in states with bans. The complaint argues that the FDA “unlawfully removed its prohibition against mailing abortion drugs,” enabling “a 50-state abortion drug mailing economy, undermining state abortion laws.” 

In other words, they’re invoking the Comstock Act and hoping to stop the mailing of abortion medication—which has been a saving grace for patients in anti-abortion states. (Tele-health now accounts for nearly 1 in 5 abortions.)

And remember, while the case was brought by three specific states, a ruling would impact the entire country—even pro-choice states.

Abortion, Every Day will be publishing an in-depth breakdown of the amended complaint shortly, but here’s what’s most important to know: The suit seeks to reverse decisions allowing abortion medication to be mailed; revoke mifepristone access to minors entirely; and restore pre-2016 rules on mifepristone, which would rollback how far into pregnancy the pills can be used, limit who can prescribe the medication, and restore requirements for in-person visits. 

The Republican AGs also accuse the Biden administration of using the FDA’s regulations on abortion medication to get around state bans; claim abortion medication is dangerous using data from ‘studies’ that have been debunked and retracted; and argue that the states are suffering harm because they’ve been left to care for the women hurt by abortion medication. 

State of Missouri; State of Kansas; State of Idaho vs U.S. Food and Drug Administration

3.44MB ∙ PDF file

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We knew this complaint was coming. After the Supreme Court ruled that a suit brought by different plaintiffs—a group of anti-abortion doctors—lacked the standing to challenge the FDA on mifepristone, conservatives made clear they’d be moving forward with other plaintiffs. What’s more, because SCOTUS didn’t judge their arguments on the merits (just standing), that June ruling gave anti-abortion groups a better sense of what the justices are looking for. 

As law professor Mary Ziegler pointed out at the time, “One could read parts of this opinion as creating a roadmap to future plaintiffs who *do* want to establish standing.”

The timing of this, though, is interesting: Republicans have been working hard to avoid talking about abortion in these last weeks before the election. They know that Americans are furious over abortion bans, and that the GOP has been losing elections because of that post-Roe fury.

I wonder if that’s part of the reason that none of the AGs have put out a press release about their amended complaint. I’m sure they’re not eager to alert the masses that they’re seeking to institute a back-door national ban this close to November.

Keep an eye on your inbox for a deep dive into the complaint—I’ve been combing through it, and you’re going to be gobsmacked by some of their arguments.

EDIT: You can now find my in-depth explainer on the mifepristone lawsuit here.

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