(CN) — A coalition of three red states sued the Food and Drug Administration and Department of Health and Senior Services on Monday for approving the abortion pill mifepristone and allowing its sale and shipment to patients nationwide, including to states that have banned abortion.
In their complaint, Republican attorneys general representing Missouri, Kansas and Idaho rely on what they call precedent in the Texas-based case Alliance for Hippocratic Medicine v. FDA, where this past April a Donald Trump-appointed federal judge granted a preliminary injunction in favor of the plaintiffs, suggesting the FDA’s initial approval of the drug more than two decades ago was based on political pressure.
In a subsequent emergency appeal, the U.S. Supreme Court stayed the injunction pending further proceedings, noting the plaintiffs had not proven they were sufficiently harmed to be granted immediate relief.
But with Monday’s complaint, the states attempt to fill the void in the injury argument by claiming the increase in prescriptions written after the FDA’s 2019 authorization of generic mifepristone resulted in a corresponding increase in complications and hospitalizations from the drug’s use.
More specifically, the states claim they have experienced direct economic injury including higher public insurance costs, plus additional costs to public hospitals and mental health care. The states also claim they should be able to exercise sovereign interest in enforcing their own laws while also protecting public health. Finally, they argue both the physical and mental health of women, girls and doctors are all negatively impacted by the complications from medication abortion.
Filed in the U.S. District Court for the Northern District of Texas, Amarillo Division, the states seek a restoration of most of the safety precautions the FDA had put in place when it approved mifepristone in 2000, as well as blocks of the 2019 FDA approval of generic mifepristone and 2021 and 2023 policies allowing the drug to be sent by mail.
“Unelected federal bureaucrats do not have the statutory authority to approve the shipment of these dangerous chemical abortion drugs in the mail,” Missouri Attorney General Andrew Bailey said in a news release Monday. “The FDA’s guidance is not only unlawful, but would cost the lives of both women and their unborn children. It failed America’s women and girls when it chose politics over science and approved risky, untested chemical abortion drugs for use in the United States. And it has continued to fail them by turning a blind eye to these harms and repeatedly removing even the most basic precautionary requirements associated with the use of these risky drugs.”
Meanwhile, the FDA considers mifepristone “safe when used as indicated and directed” and when used in accordance with a risk evaluation and mitigation strategy program. The agency has acknowledged at least 32 deaths related to mifepristone use out of more than 5.6 million doses delivered since 2000. But organizations including the American Medical Association, which filed a brief in support of the FDA in the case, claim it amounts to a “stellar safety record” similar to over-the-counter drugs such as ibuprofen and acetaminophen.
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