Three conservative-led states—Idaho, Kansas and Missouri—lost their bid to intervene in a battle between the Biden administration and conservative physicians over the abortion pill mifepristone.
The justices’ decision on Tuesday comes ahead of March 26 oral arguments in the case and marks a victory for the Biden administration in defending Food and Drug Administration safety decisions on the drug that previously were struck down by the US Court of Appeals for the Fifth Circuit.
The states’ intervention motion was tailored to maintain the litigation should the Supreme Court find that the conservative physicians lacked standing to sue the FDA over its decisions on the pill.
In January, the states convinced US District Court for the Northern District of Texas Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, to allow them to intervene in the case at the lower court level. Kacsmaryk in siding with the states noted how residents were obtaining “chemical abortions,” and how the outcome of the battle could affect how they regulate within their borders.
The physician groups launched their lawsuit against the FDA in November 2022. The case has since ping-ponged between the lower courts and the Supreme Court, passing through the Fifth Circuit twice.
The Fifth Circuit in August upheld some limits on mifepristone put in place by Kacsmaryk, including a restriction that would no longer allow the pill to be mailed to patients.
Both the Biden administration and drugmaker Danco Laboratories LLC appealed the decision, the effects of which will remain on pause until the justices are through with the case.
Thomas Jipping, a senior legal fellow at the Heritage Foundation, said he “wasn’t surprised that the Supreme Court didn’t want to open up a new piece to the case at this point.”
This does, however, give states the opportunity to pursue separate legal action, he added.
“The states have indicated that means the litigation over mifepristone probably isn’t over,” Jipping said.
The red states previously told the court that should their intervention bid fail, they would file an amicus brief.
“We look forward to continuing our support of the great work done by Erin Hawley and Alliance Defending Freedom to protect women and their unborn children,” Missouri Attorney General Andrew Bailey said in emailed comments Tuesday. Hawley is an attorney for the Alliance Defending Freedom, which represents the physicians in the case.
The case is FDA v. All. for Hippocratic Med., U.S., No. 23-235, 2/20/24.
—With assistance from Celine Castronuovo