Missouri attorney general files lawsuit against FDA over abortion pill by mail 

Washington, D.C. Newsroom, Nov 8, 2023 / 14:20 pm

The attorney general of Missouri announced this week a lawsuit against the U.S. Food and Drug Administration (FDA) over the agency’s approval of shipping abortion drugs through the mail.

Republican State Attorney General Andrew Bailey announced the filing on his website on Monday, claiming that the FDA had “unlawfully approv[ed] the shipment of chemical abortion pills in the mail.”

Bailey’s office said it had requested the court “combine [the] complaint” with an existing lawsuit that had been filed in November 2022 by the Alliance for Hippocratic Medicine (AHM). 

Previous rulings on abortion drugs

That case first drew national attention when federal Texas judge Matthew Kacsmaryk issued a controversial ruling on April 7 that suspended the FDA’s approval of the abortion drug mifepristone because approval was given “based on plainly unsound reasoning and studies that did not support its conclusions.”

In the lawsuit, the AHM challenged the FDA’s approval of the abortion drug mifepristone, originally made in the year 2000, as well as rules allowing the shipment of abortion drugs to women through the mail.

After the April decision, the Biden administration immediately issued an emergency appeal to block the ruling first to a three-judge panel in the 5th Circuit and then to the Supreme Court.

In a 7-2 decision the Supreme Court temporarily blocked Kacsmaryk’s ruling and returned the case to the 5th Circuit for full review.

In August, the 5th U.S. Circuit Court of Appeals ruled in that suit that the FDA must reinstate restrictions on abortion pills in place before 2016, with the decision banning administering the pills through the mail or via telemedicine. 

The ruling found that the FDA had not followed proper safety protocols when it loosened some restrictions on the abortion pill, though the court did not roll back the FDA’s original approval of the drug made in the year 2000.

The case is still pending; the Biden Justice Department in September asked the U.S. Supreme Court to overturn that ruling.

The Missouri AG’s lawsuit

The Missouri lawsuit, meanwhile, has similar aims to the earlier AHM suit, including a request for an injunction against rules from 2021 and 2023 “allowing [the] drugs to be sent by mail.”

The suit “comes after General Bailey led a 20-state coalition in putting pharmacies on notice that to follow the FDA’s guidance would be unlawful,” his office said. 

“Unelected federal bureaucrats do not have the statutory authority to approve the shipment of these dangerous chemical abortion drugs in the mail,” Bailey said in the announcement.

“The FDA’s guidance is not only unlawful but would cost the lives of both women and their unborn children,” he said. “I am proud to be leading a coalition of states to halt the FDA’s illegal federal overreach in its tracks.”

The FDA “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,” the lawsuit argues, claiming further that the agency “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.”

Both Idaho and Kansas joined the lawsuit, Bailey’s office said. 

The FDA told CNA via email on Wednesday that it “does not comment on possible, pending, or ongoing litigation.”

President Joe Biden had earlier in the year issued a memorandum directing federal agencies to support wider access to abortion pills. Biden’s memo came shortly after the FDA changed its guidance to allow any patient with a prescription to obtain mifepristone from her local retail pharmacy.

Bailey himself had previously been part of a coalition of 20 attorneys general that had warned pharmacy chains against fulfilling mail orders for abortion drugs within their states.