Louisiana was met with a chilly reception Wednesday, as it pushed to make the abortion pill mifepristone less accessible nationwide.
The state is arguing that the Food and Drug Administration is to blame for mifepristone being prescribed to Louisiana patients by blue state providers and entering the state through the mail, because it lifted the in-person dispensing requirement during the Biden administration. It then had to add a couple more steps to find an injury, settling on the extra money it has to pay through Medicaid when certain patients who took that mifepristone go to the emergency room with complications. The state also argues that the Biden administration was targeting Louisiana and its anti-abortion regime when it lifted the restrictions temporarily in 2021 and permanently in 2023.
“I’m looking at six different steps…and we’re gonna attribute that to the federal government?” asked Fifth Circuit Court of Appeals Judge Stephen Higginson, an Obama appointee, incredulously.
Louisiana is struggling with the same defect that doomed the last big anti-abortion legal push to ban mifepristone. Back in 2024, the Supreme Court unanimously ruled that a group of anti-abortion doctors lacked standing to challenge the FDA’s lifting of restrictions from the drug. In that case, the group similarly tried to prove injury through attenuation — what if, hypothetically, one of these anti-abortion doctors was the only person working when a woman came in needing care for mifepristone complications?
“The plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain,” Justice Brett Kavanaugh wrote for the majority in FDA v. Alliance for Hippocratic Medicine. “Under Article III of the Constitution, a plaintiff ’s desire to make a drug less available for others does not establish standing to sue.”
Louisiana is trying to accomplish the same thing under a different suite of alleged injuries.
Back in June, Judge David C. Joseph, a Trump appointee, swallowed many of Louisiana’s arguments, but didn’t give the state the relief it sought. He stayed the case, pointing to FDA’s assertion that it was already in the process of reevaluating mifepristone’s safety profile. This assessment — which the former FDA administrator slowwalked explicitly so it doesn’t conclude until after the midterms to avoid political blowback — will almost certainly give the administration pretense to make the drug harder to get. Anti-abortion groups have been frustrated with the Trump administration’s languor in attacking the drug, though they were assuaged by the recent nomination of Heidi Overton, an avowed abortion opponent who has expressed desire to restrict “abortion on demand,” as the new FDA administrator.
This left the FDA in a very awkward spot during Wednesday’s hearing before the 5th Circuit. The agency doesn’t want Louisiana to have standing, the better to narrow mifepristone access itself. But it also doesn’t want to defend its record, knowing that it’ll have to contradict findings from the Biden era that the drug is safe enough to be prescribed through telehealth and taken at home.
The judges frequently expressed frustration with the FDA’s Daniel Winik Wednesday, as he declined to stray from his narrow argument that Louisiana lacks standing to bring the case.
“I find that very unsatisfactory, that the agency won’t give an opinion as to its own regulations,” said Higginson.
Ever since Dobbs ended the constitutional right to abortion, activists opposed to the procedure have homed in on mifepristone in their quest not to “leave it to the states,” but to outlaw it everywhere. Many blue states have stood up shield laws to protect their providers when they prescribe mifepristone to patients in red ones. So far, when the red state has tried to prosecute the doctor — as when Texas Attorney General Ken Paxton (R) tried to punish New York doctor Margaret Carpenter in 2024 — the blue states have simply refused to extradite her or enforce the judgment. The bigger battle of state jurisdictions is inevitable, though, where shield laws will be held against states’ constitutional obligation to enforce other states’ judicial proceedings.
For now, the anti-abortion activists at the tip of the spear are trying to run back 2024’s failed effort again, this time in a slightly different outfit. If Wednesday’s case, Louisiana v. FDA, makes its way up to the Supreme Court, the justices will again face an effort to restrict mifepristone for blue states as well as red ones, premised on the wobbliest of injuries.
