Democratic attorneys general urge appeals court to keep abortion pill available

WASHINGTON — Democratic attorneys general from 23 states and the District of Columbia weighed in with the 5th Circuit Court of Appeals on Tuesday supporting access to the abortion medication mifepristone.

“The availability of mifepristone has been particularly critical in providing access to abortion in low-income, underserved, and rural communities where a nonmedication abortion procedure (or ‘procedural abortion’) may be unavailable,” they wrote. 

“And because medication abortion is the most common method used to terminate pregnancy during the first trimester, curtailing access to this method will result in more abortions taking place later in pregnancy, further increasing costs and medical risks.”

The 5th Circuit Court of Appeals, based in New Orleans, will decide whether a federal judge in Texas correctly ruled last week when he overturned the U.S. Food and Drug Administration’s 2000 approval of the abortion medication mifepristone.

The U.S. Justice Department has appealed the Texas judge’s ruling from that federal district court to the 5th Circuit Court of Appeals and asked the court to place that ruling on hold while the appeals process plays out. The case is likely to end at the U.S. Supreme Court.

The Democratic attorneys general who filed the brief Tuesday represent Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin and the District of Columbia.

They argued in their 25-page brief that the states “have a strong interest in safeguarding their sovereign decision to protect their residents’ ability to obtain abortions in the wake of Dobbs v. Jackson Women’s Health Organization.” 

The U.S. Supreme Court’s Dobbs opinion last June overturned the constitutional right to an abortion that stood for nearly half a century following the Roe v. Wade ruling in 1973 and the Casey v. Planned Parenthood decision in 1992. 

The Democratic attorneys general wrote in their brief the Texas judge’s ruling “could eviscerate the sovereign decisions of many amici States by disrupting access to mifepristone across the country, including in States where abortion is lawful.”

Republican attorneys general are likely to request and be granted the ability to weigh in on the appeal as well. 

Twenty-three attorneys general from GOP-led states filed briefs in the abortion pill case when it was before U.S. District Court for the Northern District of Texas Judge Matthew Joseph Kacsmaryk.

Democratic attorneys general from 21 states filed a brief in the case when it was before the federal district court judge. That brief didn’t include Arizona or Vermont, both of which signed on to Tuesday’s brief before the 5th Circuit Court of Appeals. Vermont’s governor is a Republican who backs abortion rights and its Attorney General Charity Clark is a Democrat.

Democratic members of Congress filed their own brief with the court of appeals Tuesday, urging it to grant “emergency relief from” the Texas judge’s ruling. 

The 240 lawmakers wrote they have a “special interest in both upholding the Constitution’s separation of powers — among other things, by ensuring that federal administrative agencies are able to faithfully exercise the authorities Congress delegated to them by statute without undue judicial interference — and protecting the physical health and safety of their constituents.”

The 50 U.S. senators and 190 U.S. House members wrote the Texas ruling “threatens the Congressionally mandated drug approval process, and poses a serious health risk to pregnant individuals by making abortion more difficult to access.” The only Democratic senator who did not sign the brief was West Virginia Sen. Joe Manchin III.

GOP-led states want to be heard in Washington case

In a separate federal court case on access to mifepristone, seven Republican attorneys general on Tuesday sought to intervene in the case within the U.S. District Court for the Eastern District of Washington. 

Judge Thomas Rice, in that case, ruled Friday shortly after the Texas ruling emerged that the U.S. Food and Drug Administration couldn’t change “the status quo and rights as it relates to the availability of Mifepristone” in the 17 states and District of Columbia, which had filed the lawsuit. 

In that case, attorneys general from the GOP-led states of Idaho, Iowa, Montana, Nebraska, South Carolina, Texas and Utah on Tuesday asked the judge to speed up their request to intervene in that case. 

“Plaintiff States like Washington, Colorado, New Mexico, and Oregon border several of Plaintiffs-Intervenors, and differing safeguards for mifepristone in these States directly affect Plaintiffs-Intervenors and their residents,” they wrote. 

“These concerns are particularly salient since mifepristone may otherwise not be approved for marketing as of April 15, 2023,” under the Texas federal judge’s order, they said. 

Separately in the Eastern District of Washington case, the U.S. Justice Department has asked the judge to clarify his Friday ruling, writing it “appears to be in significant tension” with the Texas ruling that is on appeal to the 5th Circuit Court of Appeals.