Republicans renewed their nationwide attack on abortion pills on Wednesday in a new complaint filed against the Food and Drug Administration.
The amended complaint, filed by attorneys general from Kansas, Missouri and Idaho, is a follow-up to the FDA v. Alliance for Hippocratic Medicine case before the Supreme Court ruled this summer. The attorneys general, as well as previous plaintiffs, are seeking to significantly reduce access to mifepristone, one of two medications that have been widely and safely used in medication abortion since the FDA first approved it in 2000.
Although the Supreme Court rejected After considering the previous plaintiffs, the Supreme Court sent the case back to a federal court in Texas, overseen by one of the country’s most notorious anti-abortion judges. The ruling came as a relief to abortion rights advocates at the time, but the decision essentially raised the question of whether access to mifepristone should remain unchanged or be further restricted. The move signaled to the nation that the conservative-majority Supreme Court is open to litigating future attacks on abortion pills — and this week’s amended complaint is the future attack many legal experts warned about this summer.
“What the court could have done if it wasn’t such a politicized court was make a decision that included the fact that mifepristone is known to be safe and is safer than Tylenol or Viagra and various other things that don’t come up. under these same kinds of regulatory protocols,” said Michele Goodwin, an expert in reproductive health law and law professor at Georgetown University. “But the court did not do that.”
The attorneys general allege the FDA acted “unlawfully” when the agency removed personal requirements for access to mifepristone, claiming the drug is “dangerous” and poses a “high risk” to patients. The lawsuit also seeks to ban mifepristone for minors and only make the pill available up to seven weeks of pregnancy instead of ten weeks. All of this is argued with brazen anti-abortion rhetoric and very little scientific evidence to support the claims that they ‘protect the pregnancy’. ‘women’s health. Several of the studies cited in the complaint were actually retracted due to their use of misleading data and because they had close ties to anti-abortion groups.
Republican officials’ main goal in the amended complaint is to ban the shipment of anti-abortion drugs by invoking the abortion the Comstock Acta 150-year-old law that criminalizes sending “obscene” material by post, including anything “intended to procure an abortion.”
Conservative Justices Samuel Alito and Clarence Thomas brought up the Comstock Act several times during oral arguments in FDA v. Alliance for Hippocratic Medicine. Their insistence indicated at the very least that they are willing to engage in the discussion and at most indicates that they agree that Comstock should be enforced. Their questions at the time foreshadowed the possibility that they would side with future plaintiffs who make this argument with better standing.
The amended complaint is similar to the original lawsuit in many respects, including the fact that no plaintiffs were directly harmed by mifepristone (a key component of filing a lawsuit), resulting in the original case being dismissed for defect to status. But the power of three attorneys general making this argument — instead of the private citizens who originally filed the lawsuit in FDA v. Alliance for Hippocratic Medicine — could make a difference.
“Here you have state attorneys general articulating that they have a responsibility to protect the health and safety of people living in their states,” Goodwin said, referring to officials’ claim that mifepristone is dangerous. “That may be an argument that is palatable to this court, at least enough to recognize that they may have standing.”
The other difference is the timing. The country is less than three weeks away from subsequent elections that could change the already bleak landscape of abortion access. Republican presidential candidate Donald Trump has joined some of the most extreme anti-abortion advocates in outlining a policy plan in Project 2025 that evokes images of “The Handmaid’s Tale.” A Trump Justice Department could stop defending the FDA the way the Biden administration has done in recent years.
“During an election in which Americans have made it so clear where they stand on abortion, these extremists continue to go against the will of the people. Whether through the courts or the White House, MAGA Republicans are committed to banning abortion,” Mini Timmaraju, president of Reproductive Freedom for All, said in a press release. “This is a five-alarm fire and we need to elect Kamala Harris as our next president and a reproductive freedom majority in the United States Congress to stop it.”
By piggybacking on the original lawsuit, Republican officials can file their complaint in Judge Matthew Kacsmaryk’s courtroom in Texas. Kacsmaryk, a far-right Trump appointee known for his anti-abortion views, is the federal judge who ruled last year that the FDA unlawfully approved mifepristone when it first hit the market more than two decades ago. Both Kacsmaryk and the 5th US Circuit Court of Appeals are likely to side with Republican anti-abortion officials.
Even though the attorneys general are from Kansas, Missouri and Idaho, a ruling in this case would have nationwide implications.
There are many bizarre statements included in the 199-page complaint, including claims that medication abortion “starves the baby in the womb.” As highlighted by feminist writer Jessica Valenti, the first to report the amended complaint, one of the most bizarre claims made by Republican officials is that medication abortion is so terrifying that the sight of blood in a toilet will give women post-traumatic stress disorder. “Women who choose chemical abortion are more likely to continue to associate their home or bathroom with abortion. The home can become a trigger for uncomfortable emotions rather than a refuge,” the lawsuit alleges.
Despite anti-abortion claims, mifepristone and misoprostol are more than 95% effective and pose fewer risks than Tylenol. More than 100 studies have confirmed its safety and effectiveness. Medical abortion represents 63% of abortion care in the US, according to a study by the reproductive rights group the Guttmacher Institute. In addition to abortion and miscarriage care, mifepristone is also used to treat other medical conditions, including Cushing’s syndrome and hyperglycemia, or high blood glucose.
