State lawmakers, AGs and Governors file briefs supporting FDA Authority
Amici Briefs from them are part of dozens of pro-choice groups
Governors, attorney generals, and state lawmakers all filed amicus briefs with the Supreme Court as it’s set to hear the case about abortion medication later in March.
The case, FDA v. Alliance for Hippocratic Medicine, centers on the conflict between the Food and Drug Administration’s approval of mifepristone–the first pill in the two-pill abortion regimen–and states that have banned abortion. An antiabortion plaintiff, the Alliance for Hippocratic Medicine, contends that the FDA did not correctly approve the use of the drug for abortions.
The Iowa Capital Dispatch reported that two dozen governors sent one brief. Twenty-four attorney generals sent another brief. More than 600 state lawmakers wrote in a 74-page brief that the Supreme Court’s ruling in the Dobbs case, which overturned the constitutional right to abortion, sent decisions about abortion back to “the people and their elected representatives,” not the court.
In February 2023, 22 governors formed the Reproductive Freedom Alliance, a nonpartisan coalition committed to protecting and expanding reproductive freedom in their jurisdictions.
According to the brief, the Reproductive Freedom Alliance Governors coordinated to stockpile abortion medication to protect access in their states, increased Medicaid reimbursement rates for reproductive services to make these services more affordable, and made contraception more accessible.
Reproductive Freedom Alliance Governors have also signed legislation to protect patients and providers, set up information hubs for those seeking care, and signed legislation to protect consumer and medical data related to abortion care.
Their argument was pretty straightforward. Governors rely heavily on the federal/state division of authority, which tasks the FDA with studying the safety and effectiveness of prescription drugs and making approval decisions based on its knowledge and expertise. Governors rely on the FDA’s approval decisions and expert judgment.
“Most state executive branches simply do not have the resources, expertise, or authority to serve as mini-FDAs,” lawyers for the amici wrote in the draft.
The attorney generals echoed the belief that the country should rely on medical expertise from the FDA in determining which drugs should be available to the market. They predicted that a Supreme Court decision against the FDA would create regulatory chaos, as it did earlier with the district court’s judgment.
The likelihood of these and other disruptions is readily demonstrated by the chaos experienced during earlier stages of this litigation, prior to this Court’s stay of the district court’s order. The district court decision, which purported to invalidate the FDA’s approval of mifepristone, and the Fifth Circuit’s ruling on petitioners’ initial stay motions, which reinstated the post-2016 REMS and labeling conditions while purporting to invalidate the FDA’s approval of generic mifepristone, created substantial uncertainty about access to mifepristone and confusion about the conditions under which it may be prescribed.
The state lawmakers said that while legislators at that level of government have the right to craft regulations, they don’t have the ability, nor should they, to approve drugs for the market. That should be left to the FDA.
Importantly from the perspective of state legislators, FDA’s approval of a drug addresses an area—the determination of whether a drug is safe and effective based on scientific data—that most states do not have the resources to address. State legislators thus depend on FDA’s science-based processes to approve medications as safe and effective for distribution and use across the nation, so that they can then legislate to ensure that all the residents of their state can access the medical care (including medications) that they and their healthcare providers determine is appropriate.