The Fifth Circuit's Dubious Accounting Compounds Its Dubious Discussion of Precedent in the Latest Mifepristone Case
On Friday of last week, the Fifth Circuit issued an order effectively banning "mail-order abortions" via mifepristone on a nationwide basis. Its ruling temporarily voided the FDA rule, formally adopted in 2023, that permits doctors to prescribe mifepristone via remote consultations, with the pills to follow in the mail. Readers will recall that two years ago the Supreme rejected a similar effort in FDA v. Alliance for Hippocratic Medicine. In that case, doctors who opposed abortion sought to challenge both the 2023 expanded access FDA rule and the original 2000 FDA approval of mifepristone. The Court found that such doctors, who did not themselves prescribe mifepristone, were asserting a too-speculative claim when they averred that they might have to treat patients who suffered complications from mifepristone. The doctors' group thus lacked standing.
The current case was brought by the state of Louisiana. According to the Fifth Circuit, the state has standing where the private doctors did not. The Supreme Court will likely soon weigh in via its emergency docket. On Monday, Justice Alito issued an administrative stay of the Fifth Circuit ruling, so that for now mifepristone is available via telemedicine and the mail. Yes, that Justice Alito. But don't lose your mind. Justice Alito delayed acting for 48 hours, apparently in contrast to stay applications he likes. And it's only an administrative stay to give the state time to respond. Its brief is due by tomorrow at 5 pm.
I suppose it's possible that the state brief could say something unexpectedly super-persuasive, but I expect its arguments to fail to adequately distinguish the Alliance for Hippocratic Medicine standing ruling. To see why, it's useful to disaggregate the two kinds of Article III injury that the Fifth Circuit validated.
According to the Fifth Circuit, Louisiana has a sovereign interest in enforcing its laws restricting abortion. FDA permission for doctors to prescribe mifepristone without an office visit and then to send it via the mail does indeed make it more difficult for the state to detect violations of its abortion restrictions than it would be if the FDA required office visits, as it formerly did. However, the fact that federal law once made it harder to get mifepristone than it does now does not mean that federal law imposes a sovereign injury on Louisiana. After all, the 2023 FDA rule does not affirmatively facilitate violation of Louisiana's abortion laws.
Imagine that there were no FDA. Then too, federal law would pose no obstacle to telemedicine prescription and mail delivery of mifepristone. But surely we wouldn't say in that circumstance that the federal government had done anything to undermine Louisiana's sovereign interest in enforcing its abortion restrictions. We do, of course, have an FDA, and pursuant to federal law, prescription medications are subject to various regulations. We can thus understand Louisiana to be arguing that by approving mifepristone for telemedicine and mail order, the FDA is not sufficiently enforcing the medication restrictions that it would otherwise impose.
Seeing the argument in this light, it's clear that Louisiana lacks standing because it is complaining that the federal government is under-enforcing federal law. But this argument pretty directly contradicts both Alliance for Hippocratic Medicine itself and California v. Texas, both of which generally deny standing to one who would complain that the government is under-enforcing federal law against a third party, regardless of whether the complainant is a private party or a state.
But wait. What if FDA approval of mifepristone pre-empts the application of state laws restricting abortion to its prescription? If that were so, then FDA approval (via mail or otherwise) of mifepristone would undercut the state's sovereign interest in enforcing its abortion restrictions. To my knowledge, however, there is no contention in this litigation that FDA approval pre-empts state regulation. I wish it did, but as I read the case law, FDA approval pre-empts state laws that restrict a medication's availability based on safety and effectiveness concerns (because that is what FDA approval is all about) but not state laws regulating the practice of medicine, including defining unethical practices (as Louisiana has deemed abortion).
Thus, the state's sovereign interest doesn't justify standing.
Neither does its economic interest. The Fifth Circuit ostensibly distinguished the pocketbook injury analysis from Alliance for Hippocratic Medicine by pointing to evidence in the Louisiana case that supposedly made this theory of injury much less speculative than the asserted pocketbook injury in Alliance for Hippocratic Medicine. The Fifth Circuit stated:
Louisiana identifies $92,000 it paid in Medicaid costs from two women who needed emergency care in 2025 from complications caused by out-of-state mifepristone. Such costs will almost certainly continue because nearly 1,000 women monthly—many of whom are on Medicaid—have mifepristone-induced abortions in Louisiana.
I made fairly conservative estimates based on available data that the cost to Medicaid of providing prenatal and delivery health care to 1,000 women in Louisiana is over $12 million. The rate of major complications from mifepristone is very low, and the cost of care associated with them is generally less than the $92,000 per two patients proposed by the state, but even taking the state's numbers at face value, the total costs the state will incur from mifepristone complications is two orders of magnitude less than it incurs from providing prenatal care through Medicaid. I've included only the costs of complications because, under the Hyde Amendment, Medicaid won't pay for the mifepristone and associated abortion care itself.
Readers might wonder whether the analysis changes if fewer than 1,000 women having mifepristone-induced abortions are on Medicaid. It would not. The key point is that for any given patient, the expected cost to Medicaid from complications due to mifepristone is much lower than the expected cost of prenatal and delivery care.
The upshot of all that should be obvious to anyone who can add and subtract: If more freely available mifepristone leads more Louisiana women on Medicaid to terminate their pregnancies than otherwise would, that will save the state money, not cost it money. There is a pocketbook benefit, not a pocketbook injury from FDA approval of telemedicine prescription and mail-order delivery of Mifepristone.
I recognize that "abortion saves the state money" is not necessarily a winning argument with the current Supreme Court. Perhaps that's why GenBioPro and Danco--mifepristone makers that bought the case to SCOTUS--do not include the point in their otherwise excellent respective briefs in support of a stay of the Fifth Circuit ruling. Nonetheless, the argument is sound. If a single action would impose costs and confer incommensurate benefits, then it might be fair for one affected by that action to say they're injured by the costs in a way that the conferral of benefits does not make up for. But that's not what's going on here. Louisiana is claiming a pocketbook injury as to which both costs and (much larger) benefits are calculated in dollars.
In the event that five Justices disagree with the foregoing and with the additional reasons not to find standing set forth in the applicants' briefs, they would still need to find a likelihood of success on the merits of the underlying challenge to the 2023 FDA action. The Fifth Circuit thought this was plain by relying on the vacated ruling in Alliance for Hippocratic Medicine and the fact that the Trump administration doesn't defend the current regime. The administration opposed the injunction on the ground that it's reviewing the rule for possible revisions. Its acquiescence in the contention that the 2023 process was flawed is based in anti-abortion ideology and the general disregard for science characteristic of federal regulation of all things medical under Trump and RFK Jr. That's why the defense of the current rule is up to a private company.
Even if the Supreme Court rules--as it should--that Louisiana lacks standing and/or that it lacks a good case on the merits, there remains a substantial risk that the current administration will rescind FDA approval for mifepristone via telemedicine and mail delivery. It might not do so until after the midterms, so as not to make abortion access a voting issue. That would be consistent with the low profile the Trump administration has taken in this litigation.
Whatever the timing, if the administration does rescind the 2023 approval, expect the litigation to continue in the form of a challenge to the rescission as arbitrary and capricious. In that litigation, there will be no doubt that makers of mifepristone will have standing and a strong case on the merits (because experience over the last several years reveals few risks from mifepristone via mail), but that is no guarantee of success, given the Justices' underlying views about abortion.