Appeals court dismisses GOP states' attempt to intervene in mifepristone challenge

Idaho and a group of GOP-led states won’t be allowed to join the state of Washington’s lawsuit against the Food and Drug Administration’s (FDA) mifepristone regulation, a federal appeals court ruled Wednesday. 

The Ninth Circuit Court of Appeals said Idaho couldn’t prove an injury related to FDA’s regulations, so it did not have standing to challenge, and as a result couldn’t intervene.  

The court said its 3-0 ruling was “guided by the Supreme Court’s recent decision on standing” in the case FDA v. Alliance for Hippocratic Medicine, where a group of anti-abortion doctors' challenge to mifepristone was similarly dismissed because they couldn’t prove they were harmed by women’s use of the medication. 

The Alliance ruling said the doctors could not show they had been forced to perform abortions or take any other actions because of the FDA’s approval of mifepristone. 

Washington and a coalition of blue states sued FDA in 2023 for excessively burdensome regulation of mifepristone, one of two drugs used in medication abortion. But a coalition of red states led by Idaho sought to intervene, asking for a completely different outcome.  

Washington sought a declaration that mifepristone is “safe and effective” and an injunction prohibiting FDA taking any action that would reduce mifepristone’s availability. A district court granted the injunction last year.

But the red states asked for an injunction to roll back changes FDA made to make mifepristone more accessible, including eliminating an in-person dispensing requirement. Their motion was dismissed at the district level.

According to the court, “the two complaints have little in common and are, in many respects, diametrically opposed.” 

Washington’s complaint concerns the legality of FDA’s provider certification and patient documentation requirements, as well as the agency’s broader determination that mifepristone meets the “stringent standards” for the imposition of restrictions in the first place.  

Idaho’s complaint, by contrast, focuses entirely on FDA’s elimination of the in person dispensing requirement, alleging that the change was inadequately explained, contrary to medical science. 

The ruling is the first by any federal appellate court on mifepristone.  

U.S. District Judge Matthew Kacsmaryk, a Trump appointee who had previously allowed the Alliance doctors to sue over mifepristone’s approval, also allowed Missouri, Kansas and Idaho to intervene and pursue the case in Texas.