Blue-State AGs Have A Mifepristone Lawsuit of Their Own

And this lawsuit faces many of the same administrative law hurdles as does AHM v. FDA.

The Alliance for Hippocratic Medicine's lawsuit seeking to force the Food and Drug Administration to revoke its approval of mifepristone, a widely used abortion medication, has received significant attention. (I've blogged on administrative law issues in the case here and here.) Less attention has been made to a parallel lawsuit filed by Demoratic state attorneys general seeking to force the FDA to move in the opposite direction.

Politico reports:

Lawyers representing the FDA are expected in court on Tuesday to defend the agency's authority to place certain restrictions on mifepristone, which is typically used to end a pregnancy during the first 10 weeks. The case before the U.S. District Court for the Eastern District of Washington was brought by more than a dozen Democratic state attorneys general who say the requirements around the drug, including a certification process for anyone prescribing it, place an undue burden on patients and providers. . . .

Oregon Attorney General Ellen Rosenblum is co-leading the lawsuit with Ferguson, and they are joined by the Democratic attorneys general representing Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Rhode Island and Vermont.

The pill restrictions, the group claims, are burdensome for both patients and doctors and the documentation requirements put them at risk for harassment or violence.

Interestingly enough, this lawsuit faces some of the same administrative law obstacles as does the AHM suit. As the Justice Department points out in its brief, the state AGs failed to administratively exhaust their remedies before filing suit (such as by filing a petition calling upon the FDA to alter its regulation of mifepristone). Moreover, it is not clear how the state AGs have standing to raise their claims at all. The state AGs' claims that their states are harmed by the maintenance of restricitons on prescribing mifepristone rest on speculative claims about the effect of such restrictions.

Another problem with the state AGs' suit is that it is ostensibly challenging the  mifepristone restrictions adopted by the FDA in January 2023, but those restrictions represented a loosening of the FDA's restrictions on mifepristone. Accordingly, vacating the January 2023 policies would result in the reimposition of those restrictions previously in force, which would be more burdensome and thus do more harm to the interests the state AGs purport to represent.

As I understand it, this lawsuit was filed to try and blunt the impact of AHM v. FDA, either by creating a conflicting court order or nationwide injunction that would keep mifepristone on the market or merely by creating a circuit split on the question. Yet whatever the motivation of the suit, it seems to me it should founder on some of the same administrative law grounds that could frustrate the AHM case.

Comments

[The Margrave of Azilia]

Again, explain why the Supreme Court picks and chooses which cases brought by states it will take.

[Merlin's Beard]

Mostly because of the operation of the Judiciary Act of 1891.

[The Margrave of Azilia]

And how did Congress get the power to mess with the Court’s original jurisdiction? The same basic question, although the other way around, came up in Marbury v. Madison, where the Court said Congress couldn’t add to its original jurisdiction. Similarly I don’t see how Congress can *subtract* from that jurisdiction.

[not guilty]

It’s actually quite simple. “Original jurisdiction” does not mean exclusive original jurisdiction. A district court entertaining a lawsuit which could also have been brought originally in the Supreme Court does not “subtract” from the latter’s jurisdiction.

[The Margrave of Azilia]

Does the defendant get a say? If not, then it’s “original jurisdiction at the discretion of the plaintiff.”

And not even that because the Supreme Court claims the power to reject all but the most important original jurisdiction cases.

[Merlin's Beard]

Chief Justice Marshall may have assumed in Marbury that SCOTUS had exclusive jurisdiction of cases within its original jurisdiction, but Congress started giving the inferior federal courts concurrent jurisdiction as early as the Judiciary Act of 1789. SCOTUS has consistently upheld that creation of concurrent jurisdiction over the decades.

As for the issue of “does the defendant get a say”, the answer is generally “no”. The plaintiff is the master of their own suit (subject to only a few limitations, of which this is not one).

Further, SCOTUS has consistently held that its exercise of its original jurisdiction should be limited and sparingly exercised. In other words, its exercise of original jurisdiction is discretionary rather than obligatory. In cases subject to concurrent original and appellate jurisdiction, SCOTUS has decided for itself that it has discretion to decline to exercise original jurisdiction and instead require that a case first proceed through the lower federal courts.

[The Margrave of Azilia]

“SCOTUS has decided for itself” etc.

I already said that: “the Supreme Court claims the power to reject all but the most important original jurisdiction case”

But if marriage itself is up for reconsideration in the Supreme Court, all bets are off – why should the issue of original jurisdiction be considered out of bounds?

[John F. Carr]

Two questions pop up. 1: Why the Eastern District of Washington? 2: Does the federal government want to win or lose this case?

[Armchair Lawyer]

1. Forum shopping. You’re looking for a district that has.
A. The maximum percentage of Biden-Obama nominated justices (active)
Then…
B. The maximum percentage of Biden-Obama-Clinton nominated justices (senior status).
AND be one in of the states that filed the lawsuit.

Out of all the possible districts, the eastern district of WA maximizes the potential judge selection criteria

[Sarcastr0]

You have the numbers to back that up, or just kinda rolling the dice there?

You could be right, but you should show your work.

[Armchair Lawyer]

Good ol’ trolling Sarcastro, expects others to post the partisan breakdown for more than 15 different district courts, but can’t be bothered to look up the information himself.

That’s the sign of a solid troll. Question, but don’t bother to actually find the facts that may actually contradict the issue being questioned. That’s work.

[EscherEnigma]

As I understand it, this lawsuit was filed to try and blunt the impact of AHM v. FDA […] Yet whatever the motivation of the suit, it seems to me it should founder on some of the same administrative law grounds that could frustrate the AHM case.

So from your understanding, those seeking this suit would be perfectly content if those “administrative law grounds” frustrate both.

The only unsatisfactory outcome would be if those grounds are used to thwart this suit but not the AHM suit.

[not guilty]

Perhaps the Washington Plaintiffs’ tactic is to set up a dismissal by the district court for failure to exhaust administrative remedies, which will be quickly appealed to the Ninth Circuit Court of Appeals. If the Ninth Circuit affirms a dismissal on that basis, that may come sooner than any appeal of the Texas district court granting or denying a preliminary injunction can be adjudicated.

It is foreseeable that the clown in Amarillo will disregard the procedural defenses raised there by the FDA and reach the merits of whether a preliminary injunction should issue — a decision which the losing parties may appeal to the Fifth Circuit. If the Ninth Circuit rules first on the exhaustion issue, the Fifth Circuit can either follow suit or create a circuit split. The latter would increase the likelihood of SCOTUS review.

[EscherEnigma]

That sounds plausible enough.

Which further convinces me that the closing line of the article is a feature, not a bug.

[ReaderY]

Given that Dobbs explicitly rejected the undue burden standard in favor of rational basis, what’s their basis for claiming that an “undue burden” standard has any relevance to the question?

[Krychek_2]

Because the issue is not abortion, it’s drug regulation. Different rules.

[ReaderY]

The APA question is whether the administrative agency acted arbitrarily and capriciously or made an error of law, not whether plaintiffs are inconvenienced by its actions. Where does the FDA have a statutory duty not to impose an “undue burden”? Or is this just a sort of Hail Mary policy argument in the hopes of finding a sympathetic judge?

[ReaderY]

I imagine that the FDA isn’t going to be arguing that the FD&C Act today could just as well be interpreted as banning mifepristone entirely, at least for elective abortion use, both because once Roe is gone pregnancy is no longer legally an illness, because since at least the days of Thalomide the FD&C Act safety obligation has been regarded as including an obligation to ensure the safety of fetuses, United States v. Rutherford means that patient wishes just don’t override, in fact are generally irrelevant to, FD&C Act safety obligations, and with Roe gone the background general principles are now constitutional and there’s no longer a special abortion exception forcing a different interpretation. And (by no means least), the FDA’s authority should be interpreted to align with, and its regulations and actions today must be limited by, other federal statutes such as the Comstock Act, which express Congress’ will and instructions regarding general federal policy towards interstate commerce in abortifacients.

[ReaderY]

I think standing here is at least possible. The states here can assert a parens patriae standing claim. They have at least a plausible argument that their interests are similar to Massachusetts’ in Massachusetts v. EPA. They are asserting both the interests of their citizens and their sovereign interests in their traditional state power to regulate medicine.

State parens patriae and sovereignty related standing doesn’t depend on which position on an issue a state wants to take.

[Bob from Ohio]

The following applies to both sides.

State AGs used to be a backwater [issue intra-government opinions and represent the state in litigation]. Then the got into consumer affairs issues and now are free wheeling knights tilting at a wide range of political charged dragons.

Politically, I get it. AG is the best way to be governor now, and failing that, still get a lot of publicity.

I don’t think this in the end is a good thing for the country. I favor flexible standing rules but this “in loco parentis” type standing where the brave AGs [both sides] fight for the rights of the people [the ones who agree with them!] has really gone too far.

Maybe we need to consolidate all such cases in the DC circuit so at least we don’t get one group of AGs seeking a friendly judge/circuit and the other doing the same with conflicting decisions possible.

[Dilan Esper]

Bob, I rarely agree with you, but you are absolutely right here.

[John F. Carr]

In Massachusetts the Attorney General was just promoted to Governor, having earned herself a lot of publicity especially during the Trump years.

[ReaderY]

Massachussetts v. EPA’s liberal theory of state standing may be wrong and perhaps should be narrowed or even overruled, as I’ve argued Havens Reality organizational standing should be.

But unless and until that happens, it’s the law, lower-court judges are bound by it, and these states, agree with their policy views or not, are entitled to take advantage of it.

I argued this kind of standing should be limited to parens patriae and sovereignty interests, public interests that are uniquely interests of states, not when (for example) the state is acting like and expressing interests similar a commercial entity or other private party. But I think these states meet that standard here

[hoppy025]

Where are these fairy blue state DAs with their gun laws which put undue burdens on citizens?