February 17, 2023

Republican and Democratic AGs Face Off in Texas in Latest Medication Abortion Row

Lori Kalani, Bernard Nash

Cozen O'Connor

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Cozen O'Connor

Forty-four AGs, evenly split into two groups of 22, have filed briefings in a Texas lawsuit in which a conservative group is challenging the FDA’s approval of mifepristone, the drug used in medication abortions. The FDA’s approval of the drug took place over twenty years ago in 2000, but the suit is part of the increasing attention being paid to medication abortion after the Supreme Court overturned Roe v. Wade in June 2022. The case, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, is being presided over by Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas.
Mississippi AG Lynn Fitch led the amicus briefing on behalf of 22 Republican AGs, who asked the court to grant the plaintiffs’ request for a preliminary injunction requiring the FDA to withdraw its approval of mifepristone for medication abortion. The Republican AGs argue that the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization returned the responsibility for regulating abortions to the states, and that the FDA’s approval of mifepristone for chemically induced abortions undermines states’ public-interest determinations on behalf of their own citizens.
New York AG Letitia James led the amicus briefing on behalf of 22 Democratic AGs, who ask the court to reject the challenge to the FDA’s approval of mifepristone. The Democratic AGs argue that decades of research have proven that medication abortion is a safe and effective method for terminating pregnancies. They warn that, if federal approval of mifepristone is withdrawn, access to safe abortion care and miscarriage management would be threatened, particularly in rural and underserved communities that may not have access to procedural abortions that must take place in clinical settings.
As we previously covered, a coalition of Democratic AGs filed an amicus briefing in another abortion case in federal court in Texas in September 2022. That case, Fund Texas Choice v. Paxton, involved a request for preliminary injunction halting enforcement of Texas’s abortion laws to the extent they prohibit interstate travel to access legal abortions.

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