On the eve of the off-year elections, three state lawyers made a surprising move by going to the courtroom of a well-known Trump-appointed judge to request to join a lawsuit seeking to revoke FDA approval of the abortion pill, mifepristone. The suit was filed almost a year ago and is awaiting a decision on whether the Supreme Court will take it up on appeal. Legal experts believe that the doctors who filed the suit do not have standing, and many predict that the court will hear the case and rule against them.
Last Friday, the Republican attorneys general from Missouri, Kansas, and Idaho filed a motion to intervene in Judge Matthew Kacsmaryk’s court, claiming that their states have also been harmed by the approval of mifepristone in 2000. This last-minute intervention suggests that they are concerned about a potential ruling against the doctors. The attorneys general argue that doctors are using “shield laws” to mail mifepristone to their residents, which undermines their ability to enforce abortion restrictions. They want to join the case for the sake of expediency, stating that it is more efficient than bringing a separate lawsuit.
However, legal experts view this intervention as suspicious and a strategic move by the states to strengthen their standing claims. Steve Vladeck, a professor at the University of Texas School of Law, believes that the states’ standing argument may not be stronger than that of the Alliance for Hippocratic Medicine (AHM), the original plaintiffs. This move seems to be an attempt to secure a favorable ruling from Judge Kacsmaryk, who is seen as sympathetic to the anti-abortion cause.
Mary Ziegler, a law professor at the University of California, Davis, suggests that the AGs’ attempt to join the case at this late stage is also aimed at delaying the proceedings. This delay could push the case into next year’s term, which would be advantageous for those who believe that the Supreme Court is more likely to rule in their favor in a non-election year. The risk of public blowback and political consequences for the Republican Party would be reduced if a ruling on mifepristone is delayed until after the 2024 presidential election.
The Biden administration has acknowledged this delay in its response to the AGs’ motion and has requested that Judge Kacsmaryk wait for the Supreme Court to resolve the case before ruling on the intervention. If the motion is granted, it could disrupt the timeline for the case to be heard and result in a ruling by June 2025. Solicitor General Elizabeth Prelogar has asked the court to consider taking up the case at its upcoming conference on December 8.
The ultimate decision lies with Judge Kacsmaryk, who will determine whether the states can intervene in his court. Even if he grants the motion, the states would still need to request to join the case at the appeals level. Legal experts believe that convincing five justices to allow their participation would be challenging. Regardless, the outcome rests in the hands of the Supreme Court, and the hope is that they will make the right decision.
