GOP states unite against Trump FDA for violating their pro-life laws with lax abortion pill rules

Three-quarters of GOP state attorneys general are doing something once unthinkable: revolting against the Trump administration. Their breaking point: the mass violation of their abortion laws enabled by alleged regulatory foot-dragging.Twenty-one states, 60 members of Congress, victims of coerced abortion, former abortion providers, medical advocacy groups and researchers dog-piled the Food and Drug Administration in court over the past week, backing a lawsuit by Louisiana and a coercion victim to block the lax regulatory regime for an abortion pill.
The FDA is trying to get the lawsuit paused for the duration of its oft-promised safety review of mifepristone, whose safety monitoring, usage and prescribing conditions have been repeatedly loosened by Democratic administrations, but the agency’s representations in court suggest it might still be going by November’s midterms.
The first hurdle for plaintiffs and supporters to overcome is achieving legal standing to sue by showing the FDA harmed Louisiana and state resident Rosalie Markezich, who says her boyfriend coerced her to take mifepristone he obtained by mail from California.
The crush of friend-of-the-court briefs is unusual for a case still percolating at the trial court level, suggesting exasperation by a wide swath of President Trump’s presumed base. (The docket shows a dozen parties filed motions for leave to file briefs, but only five have been approved at this point by U.S. District Judge David Joseph.)
‘Abetting illegal abortions was the very point,’ not incidental
The 2023 change to the pill’s Risk Evaluation and Mitigation Strategy constitutes a prohibited federalization of abortion policy after the Supreme Court’s Dobbs precedent gave primacy to state “prerogatives” on abortion in any form, harming Louisiana, Nebraska Attorney General Michael Hilgers wrote on behalf of the 21 GOP AGs. 
That permanent removal of mifepristone’s in-person prescribing requirement, after a temporary COVID-19 exemption, “effectively permits New York and California doctors to superimpose their views on States like Louisiana, whose citizenry and electorate have charted a different path,” violating the “respect States owe to sister States” under the Constitution.
The brief alludes to New York doctor Margaret Carpenter, the subject of a legal fight between Texas and the Empire State, who “can circumvent prolife States’ clear prohibitions on telehealth chemical abortions” under the 2023 REMS, violating their “sovereign interest.” 
Abortion regulation is a “quintessential state issue,” and a federal regulation “should not enable California’s policy choices to extend beyond her borders and override Louisiana’s contrary choices,” the AGs said.
The FDA falsely claims that siding with Louisiana would let states challenge “any federal action that allegedly increases crime or disorder,” when the fact is “REMS did not incidentally increase telehealth abortions,” they said. “Abetting illegal abortions was the very point … The Biden Administration did not even attempt to hide the ball.”
The agency also erases the financial cost Louisiana has suffered from the 2023 change – “at least $92,000 in increased Medicaid costs from two mifepristone-induced abortions” – and the “actual emergency-room visits” by victims of mifepristone by mail, which the state will “likely ultimately” have to pay for, the brief says.
A brief by dozens of federal lawmakers led by Senate Health Committee Chair Bill Cassidy, R-La., and Rep. Chris Smith, R-N.J., perhaps the longest running pro-life leader in Congress, argues the REMS change violates the Administrative Procedure Act through a shoddy safety review, which used absence of evidence to justify telehealth prescribing.
“This admission makes it clear that the Biden FDA got its legal responsibilities backward,” the brief says. “The FDA has the burden of establishing safety before weakening safety standards” such as in-person prescribing, which is crucial to verifying gestational age and catching conditions under which pills can’t be taken, such as ectopic pregnancy and IUD.
The REMS change also flatly violates the Comstock Act, which prescribes up to five years in prison on the first offense for mailing anything that intentionally causes abortion or is advertised to cause someone to use it for abortion, lawmakers said, taking several pages to rebut the Biden administration’s repeated efforts to explain away the “plain text” of the law.
‘A supply of pills for an unknown, unseen, coerced victim of exploitation’
University of Oxford researcher Calum Miller, a medical doctor who has published two studies on the risks of telehealth abortion, said the FDA ignored reservations from “the most pro-choice European countries” about remotely prescribed abortion pills.
While the U.K. and Netherlands lead Europe with the longest windows for “abortion on demand (de facto)” at 24 weeks, their “leading pro-choice medical professionals and politicians have strongly opposed telemedicine abortion for safety reasons” and most other pro-choice European countries have never allowed it, he said.
The National Health Service’s National Network of Designated Healthcare Professionals for Children warned in 2021 that “[v]irtual consultations enable unseen and unheard coercive adults to influence the patient,” he noted. Applications may be “entirely fictitious,” enabling “a supply of pills for an unknown, unseen, coerced pregnant female victim of exploitation.”
Among the lesser known groups that filed briefs is the 26-year-old Justice Foundation, whose president is known for a years-long legal campaign to overturn federal abortion rights with Norma McCorvey and Sandra Cano, the lead plaintiffs in the Supreme Court’s foundational abortion precedents Roe and Doe, who later regretted their roles.
The foundation and its Center for Forced Abortion filed a joint brief with nearly 2,800 “women injured by abortion” and National Association of Christian Lawmakers. 
“The FDA has arbitrarily and capriciously chosen to look away from the harm” it enabled against girls and women like Markezich, who are “still vulnerable to further male violence,” by paving the way for parents, guardians, the baby’s father, prostitution and human trafficking to force them into chemical abortions, the joint brief said.
“A man could not legally go online and buy drugs to kill his baby under the REMS protocol before the 2023 REMS,” their brief says. If the plaintiffs don’t get standing, “there will be no light shed and no redress” for victims, “chilling the resolve of more injured women to come forward” and risk “being re-traumatized” when their “harm is ignored or minimized.”

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