Mississippi Attorney General Lynn Fitch led a 19-state coalition in filing an amicus brief in the U.S. Court of Appeals for the Fifth Circuit in the case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (FDA).
In the brief, the Attorneys General argue that the Biden Administration and the FDA’s attempt to roll back safety mechanisms for the abortion-inducing drug mifepristone and to make it widely available through the mail violates both federal law and state laws. Current federal criminal law plainly prohibits the distribution of abortion-inducing drugs through the mail. (18 U.S.C. § § 1461, 1462)
Last week, in ruling against the FDA, Texas U.S. District Court Judge Matthew Kacsmaryk stated, “The Court does not second-guess FDA’s decision-making lightly. But here, FDA acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions.” On the same day, in a separate case and while reaching different conclusions, a federal district court in Washington also faulted the FDA’s actions.
“On one day, even while considering two very different cases, two judges found that the FDA’s approval of chemical abortion was flawed,” said Attorney General Lynn Fitch. “One thing is evident: Over the past two decades, the FDA has engaged in political calculations, not scientific ones, when it comes to chemical abortion. It is our hope that the Fifth Circuit sees how the FDA’s brazen attempt to trample on federal and state laws endangers both the health of women and democracy and takes decisive action to uphold the people’s right to regulate abortion.”
In the brief, the Attorneys General write, “Rather than respect the Constitution, the Supreme Court, and the democratic process, the Biden Administration and its FDA has attacked and worked to undermine the considered judgments of the elected representatives of States. The Biden Administration has, following Dobbs, doubled down on its efforts to impose on the country an elective-abortion policy that it could never achieve through the democratic process.…”
The brief concludes, “The serious nature of the FDA’s unlawful actions, and the agency’s decision to invite lawbreaking by private parties and government actors across the country, favors the relief the district court ordered….The district court’s decisive action was warranted. And this Court’s is too. This Court should deny any stay relief.”
Attorneys General from Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Montana, Nebraska, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming joined General Fitch on this brief.