AG Fitch Leads Coalition Asking U.S. Supreme Court to Protect Democracy and Women’s Health

Attorney General Lynn Fitch led a coalition of 19 State Attorneys General in filing an amicus brief in the U.S. Supreme Court in support of the medical professionals in the case of Alliance for Hippocratic Medicine v Food and Drug Administration.

“Since the day the Court returned important abortion policymaking to the people with the Dobbs decision,” said General Fitch, “the Biden Administration has single-mindedly pursued an agenda to remove that policymaking from the people’s elected leaders in the states and install it with administrative agencies. The Supreme Court has affirmed the right of the people to balance competing interests, make considered judgments, and write the laws that protect the health and wellbeing of women and their children. We cannot allow the Administration to do an end-run around democracy, especially when bypassing the democratic process carries with it serious life or death implications.”

In their brief, the Attorneys General lay out the steps take by the FDA over the past two decades that have increasingly set aside protections for women’s health in blind pursuit of a political agenda:

In 2000, the FDA approved the drug mifepristone for chemically induced abortions. That approval was legally flawed, but it at least included measures to account for mifepristone’s risks to life and health. The approval extended only through 49 days of pregnancy; allowed mifepristone to be dispensed only in clinics, medical offices, or hospitals (all under a certified prescriber’s supervision); mandated three in-person office visits; and required providers to report all adverse events from the drug. Yet over time the FDA cast those measures aside. In 2016, it rolled back many safety requirements—allowing mifepristone to be prescribed through 70 days of pregnancy, by non-doctors, and with only one in-person visit—and stopped requiring prescribers to report non-fatal adverse events from the drug. And in 2021, the agency abandoned the inperson-dispensing requirement. The FDA now condones a broad mail-order abortion-drug regime.

The District Court held that the FDA’s core actions on mifepristone are flawed and stayed them. The Fifth Circuit Court of Appeals upheld that ruling in part, noting that the FDA failed to study the cumulative effect of various changes it approved for use of the drug, including the removal of any requirement that a medical professional determine a pregnancy was not ectopic or past the recommended gestational age, and further noting that simultaneously the FDA removed any reporting of non-fatal adverse events pursuant to use of the drug. The parties are now seeking review by the U.S. Supreme Court.

Attorneys General from Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wyoming joined General Fitch on this brief.

General Fitch has led multiple amicus briefs in the case of Alliance for Hippocratic Oath v U.S. Food and Drug Administration, including an May 12, 2023, amicus brief in the 5th Circuit Court of Appeals and an April 18, 2023 brief when the case was last before the Supreme Court.