Republican attorneys general in Idaho, Kansas and Missouri are seeking to restrict abortion drug mifepristone through new legal routes, after the Supreme Court shot a previous version of their lawsuit down in June.
Mifepristone and Misoprostol pills are pictured on Oct. 3, 2018, in Skokie, Illinois.
The attorneys general filed an amended complaint in federal court asking it to roll back the Food and Drug Administration’s updates to its approval to mifepristone, which made the drug available via telehealth and through the mail.
The Supreme Court threw out a previous version of the lawsuit that was filed by doctors opposed to mifepristone, ruling they didn’t have standing, but the states argue they can bring the case because they have an interest in “protecting [their] citizens,” citing the practice of residents being prescribed or mailed abortion pills from out of state.
Mifepristone is one of two drugs taken during a medication abortion, along with misoprostol, with states claiming the drug is “dangerous” despite studies overwhelmingly showing the medication is broadly safe and effective at terminating a pregnancy.
The attorneys general also asked the court to rule that mailing abortion pills is illegal under the Comstock Act, a 19th century law that’s laid dormant for decades that bans the mailing of anything related to abortion.
The states ask the court to rescind updates made to mifepristone’s approval in 2016 and 2021—which, if rolled back, would mean the drug could only be prescribed and taken in-person at a physician’s office, and would only be available through seven weeks of pregnancy, rather than 10 as is now allowed.
The FDA has not yet responded to a request for comment.
The court has not yet ruled on whether it will accept the states’ amended complaint, though the judge overseeing the case, U.S. District Judge Matthew Kacsmaryk, is a Trump appointee who’s well known to be sympathetic to conservative causes and already outlawed mifepristone the first time the lawsuit was brought. (An appeals court then rolled back his order, ruling the drug should be restricted but not banned entirely.) It’s likely the updated litigation will be appealed and make its way through the court system as the initial version of it did, potentially giving the Supreme Court a second chance to consider mifepristone’s legality.
While the state lawsuit on mifepristone specifically seeks to only roll back some regulations of the drug, a ruling in the attorneys general’s favor could have bigger consequences for both abortion and the healthcare industry. A ruling from the court that finds mailing abortion pills is legal under the Comstock Act could help anti-abortion rights advocates use that law to ban abortion more broadly. Since the act bans not only the mailing of abortion pills but any equipment or materials related to abortion, it’s been viewed as a potential way for Republicans to functionally outlaw abortion without imposing a federal ban, as blocking companies from shipping or doctors from receiving anything related to abortion through the mail would make it largely impossible to perform the procedure. The pharmaceutical industry has also warned a ruling rolling back the FDA’s approval of mifepristone would be a slippery slope that opens up the possibility of other politically controversial medications being challenged in court, such as HIV/AIDS treatments, COVID-19 vaccines or medications for gender-affirming care.
The Republicans’ updated lawsuit—which was filed on the court’s docket Friday without any public announcement from the states—comes as GOP politicians have largely tried to downplay attacks on abortion ahead of the November election, as polling shows most Americans want the procedure to remain legal. Former President Donald Trump has said he wants to leave the issue to the states and claimed he would veto a national abortion ban after previously floating banning abortion at 15 weeks, and running mate Sen. JD Vance, R-Ohio, claimed he hadn’t supported a national abortion ban when asked about it at the vice presidential debate, despite evidence showing he did. The Republican National Committee also left out language calling for a national ban from its platform this year—though other, more vague language still left in could functionally ban it anyway—and candidates have underplayed their anti-abortion views. Anti-abortion advocates have branded abortion restrictions as “minimum standards” rather than bans, hoping to avoid the negative connotations as abortion bans have become broadly unpopular, and CNN reports some House GOP candidates have even announced they’re “pro-choice” in order to keep the issue out of their races.
Medication abortion is responsible for the majority of abortions that now take place in the U.S., with the use of abortion pills only growing in the wake of the Supreme Court overturning Roe v. Wade in June 2022. As states across the country have banned abortion, pregnant people have been able to obtain pills via the mail or by traveling out of state, allowing them to more easily access abortion than if they had to obtain a surgical abortion. Republicans have ramped up attacks against abortion pills and mifepristone as a result: In addition to the litigation challenging the drug’s approval, Wyoming became the first state to outlaw abortion pills specifically in March 2023—though the law has since been blocked in court—and Louisiana restricted mifepristone and accompanying drug misoprostol by making them controlled substances, among other anti-abortion pill measures. Mifepristone was first approved by the FDA in 2000 and studies have repeatedly affirmed the drug’s safety and efficacy, finding it to be 99.6% effective in terminating a pregnancy, with only 0.4% of medical abortions resulting in serious complications. A February study in Nature found medication abortion is equally safe and effective when prescribed via telehealth as when prescribed and taken in a clinical setting.