A federal appeals court has unanimously rejected an attempt by a group of Republican states to intervene in a lawsuit seeking fewer restrictions for the abortion pill mifepristone.
Mifepristone is subject to certain safety restrictions imposed by the FDA under a Risk Evaluation and Mitigation Strategy, or REMS. Regulators loosened some of those restrictions in 2016 and 2021, allowing mifepristone to be distributed by mail, lowering the requirement for in-person clinical visits and extending how late into pregnancy a patient may take it.
But 12 states led by Washington and Oregon argued in Washington federal court last February that the agency hadn’t done enough to improve access.
The states said mifepristone should no longer be subject to any of its original restrictions, arguing that it “is safer than many other common drugs FDA regulates, such as Viagra and Tylenol,” according to court documents. Mifepristone has been on the market for decades and has been taken by millions of women.
Seven Republican-led states sought to intervene, arguing that a decision in favor of Washington would make mifepristone “easier to obtain and harder to police.” Those states — Idaho, Iowa, Montana, Nebraska, South Carolina, Texas, and Utah — asked the court to reimpose tighter restrictions on mifepristone, including the requirement that it be dispensed in-person.
A Washington federal judge denied that attempt in April 2023. The Ninth Circuit Court of Appeals upheld that decision on Wednesday, citing the Supreme Court’s recent decision in FDA v. Alliance for Hippocratic Medicine. In that case, justices rejected an attempt by doctors and anti-abortion groups to limit the use of mifepristone, ruling that claims made by doctors and anti-abortion groups were “too speculative or otherwise too attenuated to establish standing.” The Ninth Circuit also determined on Wednesday that the Republican-led states lacked standing.
A lower court declined Washington and Oregon’s attempt to toss the FDA’s 2023 mifepristone REMS in its entirety in April 2023, as doing so would reimpose the previous REMS, running “directly counter” to the states’ intent.