The U.S. Supreme Court heard oral arguments on Tuesday on whether to allow a preliminary injunction suspending the FDA’s 2021 decision easing restrictions on the availability of mifepristone, a prescription medication used in medical abortions. The injunction, issued by a federal judge in Texas in April 2023 and subsequently narrowed by the Fifth Circuit Court of Appeals, applied nationwide. The Supreme Court issued a stay stopping the injunction from going into effect until the high court could consider the case.
Rep. Ashley Hinson, whose congressional district includes Cedar Rapids and all of northeastern Iowa, and Rep. Randy Feenstra, whose district covers western Iowa, joined 145 other Republican members of Congress in an amicus brief asking the justices to allow the injunction restricting access to mifepristone to go into effect.
“As pro-life elected representatives, Amici are committed to protecting women and girls from the harms of the abortion industry,” the brief Hinson and Feenstra signed states.
Acting on behalf of the state of Iowa, Brenna Bird joined 20 other Republican state attorneys general pushing for the restriction on the medication.
Judging by the questions asked on Tuesday, the court won’t do what Hinson, Feenstra and Bird want. Most of the questions focused on whether the district court in Texas should have even heard the case in the first place, because the group suing the FDA seems to lack standing to bring the lawsuit.
In order to have standing to sue, the plaintiffs would have to be able to demonstrate the FDA harmed them by deciding to allow patients to receive mifepristone through the mail, provided it has been properly prescribed and the laws in the patient’s state permit it.
The group that sued the FDA over mifepristone is the Alliance for Hippocratic Medicine (AHM), a recently formed nonprofit with a small membership of anti-abortion doctors, nurses and dentists. Since none of these doctors, nurses or dentists would ever prescribe mifepristone, they cannot be harmed by FDA regulations on how the medication can be delivered to patients.
“This legal battle is nothing more than a politically motivated attack to limit access to abortion. It’s one of the many ways that anti-choice groups are creating confusion in this healthcare landscape since the fall of Roe,” Ruth Richardson, president and CEO of Planned Parenthood North Central States (PPNCS), said in an online news conference on Tuesday afternoon.
Restricting or ending access to medications necessary for a medical abortion has become a priority for anti-abortion activists since the U.S. Supreme Court overturned Roe v. Wade in 2022.
Because AHM members never provide abortion care, no normal federal judge would find they have standing to sue the FDA over mifepristone. That’s why AHM went judge-shopping for one who would, and filed the lawsuit in Amarillo, Texas.
Because of the unusual way federal courts are administered in Texas, all lawsuits like this go to just one judge: Matthew Kacsmaryk.
Kacsmaryk was a rightwing activist before being appointed to the federal bench by President Trump, and was known for his hardline anti-abortion and anti-LGBTQ views. A lifetime appointment to the federal bench has done nothing to moderate Kacsmaryk. He has become known for granting standing to plaintiffs whose cases are intended to advance rightwing causes, even if they normally wouldn’t qualify, and for issuing nationwide injunctions, even when it is obvious they will be overturned. If any judge was going to give AHM a favorable ruling, it was Kacsmaryk.
He did, issuing an injunction that granted everything AHM asked for in their lawsuit—not only overturning the FDA’s recent decisions regarding mifepristone, but even suspending the FDA’s original approval of the drug, which happened in 2000.
In February 2023, Bird joined 21 other Republican state attorneys general in filing an amicus brief arguing that Kacsmaryk should rule in AHM’s favor.
On just procedural grounds, Kacsmaryk’s ruling in the case was unprecedented. Federal law establishes a six-year window in which FDA approval of a drug may be contested. Mifepristone was approved 23 years ago. Federal law also sets out a specific procedure regarding reconsideration of the approval of a drug before approval is withdrawn. Kacsmaryk ignored those laws in his ruling.
Peer-reviewed research and two decades of experience have shown mifepristone to be safe since the FDA approved its use in 2000. It has become widely used over the last quarter century, and medication abortions now account for more than half of the abortions performed in the United States.
During the news conference on Tuesday, Dr. Sarah Traxler, chief medical officer of PPNCS, explained some of the reasons mifepristone has become an important part of abortion care.
“Most people consider it less invasion, more private,” she said. “And it allows patients to safely control their own bodies and their own healthcare. It offers the flexibility to complete your abortion within the comfort of your own home, and with your chosen support person with you.”
“As a doctor, I know how important this flexibility is to all my patients.”
The Biden administration immediately appealed Kacsmaryk’s sweeping and unprecedented nationwide injunction. All appeals of federal court decisions in Texas go to the Fifth Circuit Court of Appeals. Covering Texas, Louisiana and Mississippi, it has been the country’ most conservative court of appeals since the 1990s, and in recent decades it has moved so far right and become such an outlier among appeals court that some legal scholars refer to it as “the place law goes to die.”
Kacsmaryk’s injunction went too far for the three-judge panel who heard the appeal. The section of Kacsmaryk’s ruling overturning the FDA’s 2000 approval of mifepristone was voided, but two of the judges decided AHM had standing to sue and left in place the part of the injunction stopping the FDA’s more recent decisions.
Judge James Ho — a Trump appointee whose confirmation was pushed through the Senate Judiciary Committee by then-Chair Chuck Grassley over the objections of Democrats — bent legal precedent in a surprising way to grant AHM standing. Ho decided those anti-abortion doctors, nurses and dentists could sue because they enjoy looking at pregnant women.
“It’s well established that, if a plaintiff has ‘concrete plans’ to visit an animal’s habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal,” Ho wrote, citing cases involving environmental laws.
“Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients — and experience an aesthetic injury when they are aborted.”
Ho’s opinion did not factor into arguments before the Supreme Court on Tuesday, but none of the arguments on standing advanced by the attorney representing AHM seemed to impress a majority of the justices. AHM is represented in this lawsuit by the Alliance Defending Freedom (ADF), an Arizona-based conservative Christian legal advocacy group known for opposing access to contraception and abortion, as well as for opposing LGBTQ rights.
Before Brenna Bird became Iowa Attorney General in 2023, Gov. Kim Reynolds employed attorneys from ADF in her unsuccessful attempt to have the Iowa Supreme Court dissolve its 2019 permanent injunction striking down a six-week abortion ban she signed into law in 2018. ADF has also been one of the main groups working behind the scenes with state legislators across the country to impose new anti-transgender laws, and under Reynolds’ leadership Iowa has been one of the most aggressive states when it comes to enacting anti-transgender legislation.
A decision from the Supreme Court is expected before the end of June.
“Currently we mail mifepristone via telehealth to patients in a Minnesota address, we also provide telemedicine abortion in Iowa,” PPNCS President Richardson said during the news conference.
The reason mifepristone is mailed in Iowa is because of the state’s 24-hour waiting period before a patient can receive abortion care requires two in-person visits by a patient to a clinic. The medically unnecessary waiting period was pushed through by Republicans in the Iowa Legislature on a series of quick votes on the final night of the 2020 legislative session, just hours after it was introduced.
“The interesting thing about it: it’s a 24-hour waiting period and you didn’t even give women 24 hours’ notice that you would be stripping them of their rights,” Sen. Janet Petersen, a Democrat from Des Moines, said during the Senate debate on the bill.
Despite the waiting period and the governor’s other attempts to restrict reproductive rights, abortion remains legal in Iowa up to 20 weeks into a pregnancy.
