Idaho AG Labrador pushes to impose limits on abortion medication in revived Texas lawsuit
BOISE – Idaho Attorney General Raúl Labrador and peers from two Midwestern states are attempting to revive a high-profile lawsuit over abortion medication and restrict its use around the country.
The top attorneys in Idaho, Kansas and Missouri have tried this month to refile a lawsuit challenging loosened restrictions that the U.S. Food and Drug Administration has placed in recent years on mifepristone, part of a two-drug regimen for medication abortions. In June, the U.S. Supreme Court rejected a lawsuit over the drug from anti-abortion groups, finding that they did not have legal standing to sue.
For now, the three states, which a judge allowed to intervene in the case in January, are trying to keep their new complaint in the same case file and the same jurisdiction: the Northern District of Texas. If successful, it would again be decided by U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump whose rulings frequently result in wins for the conservative right.
In 2023, Kacsmaryk temporarily paused the FDA’s approval of the same abortion drug – the first time a judge had done so for any medication. Kacsmaryk has not ruled on whether he will allow the new complaint to continue as part of the same lawsuit.
The latest legal effort targeting mifepristone has drawn scrutiny from abortion rights advocates, including over an argument concerning teen birth rates and a desire for maintaining state populations.
The two-drug abortion regimen, which can be mailed legally without an in-person medical visit and also prescribed by nurse practitioners or doctors, has become increasingly prevalent since the overturning of Roe v. Wade. The 2022 landmark court decision led to strict abortion bans in Idaho and many other states.
More than 100 medical studies of mifepristone and misoprostol – the other drug in the regimen – have found them safe, effective and to cause serious complications only in very rare cases.
FDA reports ‘serious adverse events are rare’
The renewed legal push from three Republican, anti-abortion attorneys general comes as the availability of abortions has shifted significantly in the wake of Dobbs v. Jackson Women’s Health Organization, which overturned Roe. The ruling contributed to abortion becoming a central clash of next month’s presidential election.
The anti-abortion groups in the original mifepristone lawsuit wanted approval of the drug – which has been green-lit by the FDA since 2000 – to be overturned. The version of the lawsuit that eventually made it to the Supreme Court instead considered whether to annul loosened restrictions the FDA has placed on the drug over the past decade.
The lawsuit from Labrador and the two other states similarly asks the court to reinstate a limit on mifepristone’s use from 10 weeks into a pregnancy to seven, and again require that pregnant women visit a doctor three times in person before getting a prescription. It also goes further, asking the court to prohibit providers from prescribing the drugs to minors.
Idaho and the other states assert that women in the three states are receiving abortion medications by mail, circumventing the strict prohibitions in law. But a ruling in their favor could impact access to the medications even in states where abortion is legal.
The lawsuit alleges that the FDA did not follow proper safety guidelines when it removed restrictions on the abortion drugs. In 2016, the FDA allowed nurse practitioners to prescribe the drug and extended the allowed period from seven to 10 weeks into a pregnancy. In 2021, during the COVID-19 pandemic, the FDA lifted its rule requiring an in-person doctor’s visit.
“Mifepristone is a dangerous drug that, according to the FDA’s own admission, will send one in 25 women to the emergency room,” Dan Estes, Labrador’s spokesperson, said in an emailed statement to the Idaho Statesman. “The FDA removed the requirement of an in-person consultation, ultrasounds, and almost every protection for the health of women who take it to terminate a pregnancy.
“Idaho’s suit does not seek to ban access to mifepristone but asks the court to reinstate protections for women that the FDA removed when it prioritized politics over the health and safety of mothers of every age.”
In an earlier response brief, the FDA asserted that “serious adverse events are rare, and an ER visit does not mean there has been an adverse event, let alone a serious adverse event.” One study found the serious complication rate for medication abortions is less than a third of a single percent.
The Idaho Democratic Party blasted the state’s lawsuit Monday, countering that the effort to place more restrictions on the use of mifepristone is “political,” not medical.
“Attorney General Labrador is attempting to enlist a radical activist judge in Texas to rewrite abortion policy for the entire country,” Idaho Democratic Party Chair Lauren Necochea said in an emailed statement. “His demands would make safe medication for both abortion and miscarriage management inaccessible to minors, ban mailing this medication nationwide, and require three in-person doctor visits before receiving it.
“Idahoans are fed up with Republicans interfering in their health care,” she added.
Lawsuit cites teen birth rates
The new legal complaint has additionally come under fire from abortion rights groups and Democrats for appearing to argue that the three states would like to see more teenage girls give birth. In a section entitled “Injuries to Plaintiffs’ Population Interests” toward the end of the 199-page filing, it discusses the effects of “loss of fetal life and potential births, leading to a resulting reduction in the actual or potential population of each state.”
The filing cited one study on the effects of the Dobbs decision on fertility, which noted that in states where abortion is banned, birth rates were more likely to increase the farther women seeking abortions have to drive to reach a state where abortion is still legal.
The legal brief said it is “striking” that the study did not find an increase in births for teenagers aged 15 to 19, and stated that the study concluded this may be the result of younger women being better at navigating online resources to order abortion pills through the mail.
“This study thus suggests that remote dispensing of abortion drugs by mail, common carrier, and interactive computer service is depressing expected birth rates for teenaged mothers in plaintiff states,” the complaint said. “A loss of potential population causes further injuries as well,” it added, going on to note the potential loss of “political representation” or access to federal funds.
“These Republican politicians are absurdly claiming they’ve been harmed because teen birth rates haven’t risen under their extreme abortion bans,” Necochea said in her statement. She also referenced a comment made last year by Senate Pro Tem Chuck Winder, R-Boise, when he suggested to the Statesman that abortions were part of the reason for a lack of service workers.
Estes, Labrador’s spokesperson, countered that “abortion activists are misleading the public by intentionally misinterpreting” one paragraph of the lengthy legal complaint.
“Nobody wants teen pregnancies to increase and any suggestion to the contrary is absurd, false, and misleading,” he said. “But when teens do become pregnant, the life of the teen mother and the life of their unborn child must be protected.”
Estes also noted that a Georgia woman recently died “from complications after taking mifepristone.”
In 2022, a woman from the Atlanta area suffered from a rare complication after taking abortion pills, and had not been able to expel all of the fetal tissue from her body, ProPublica reported last month. But the article indicated the reason for her death was not the abortion drugs. Rather, when she arrived at the hospital for the “routine procedure” to clear her uterus, doctors at the hospital declined to operate on her for 20 hours. A recent state law had made it a felony to perform the procedure except in limited cases. Any doctor found in violation of the law could face prison time. The woman died.
A state committee which reviewed her death, and whose findings were publicized by ProPublica, determined that her death had been “preventable,” and that “the hospital’s delay in performing the critical procedure had a ‘large’ impact on her fatal outcome.”