Duba, Wittman Join 600+ Legislators in Urging Supreme Court to Hear FDA/Mifepristone Case

Democratic District 15 Representatives Linda Duba and Kadyn Wittman have joined over 600 state legislators from 49 states in a friend of the court brief urging the United States Supreme  Court to reverse the ruling by a Texas federal court, upheld by the Fifth Circuit, that would repeal the Food and Drug Administration’s approval of the abortion-inducing drug mifepristone.

The amici curiae contend that the Texas/Fifth Circuit ruling undoes the “let the states decide” federalism enunciated by the misogynist Alito Court in its Dobbs reversal of Roe:

The Fifth Circuit’s decision finding likely unlawful and staying two FDA actions modifying the conditions under which mifepristone can be prescribed for abortion cannot be reconciled with the federalism principles underlying Dobbs.

There, the Court overturned Roe, “leav[ing] the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress[.]” Dobbs, 142 S. Ct. at 2305 (Kavanaugh, J., concurring). State legislatures and the legislators elected to them, including many elected based on platforms that advocated for expanded abortion access, took up the mantle given them by the Court. Many states have since passed legislation addressing abortion—including legislation regulating medication abortion.

The Fifth Circuit’s decision purporting to stay the FDA’s 2016 and 2021 REMS modification decisions—and thereby limit access to medication abortion nationwide—comes like the proverbial bull in the china shop. It cannot be squared with the federalism principles that this Court articulated as the basis for its decision in Dobbs. In the guise of overseeing the FDA’s exercise of routine regulatory authority over pharmaceuticals, the Fifth Circuit wrests the power to decide abortion access issues back out of the hands of state legislators.

The Fifth Circuit’s decision also disrupts the delicate balance between the FDA’s authority to approve a drug using rigorous scientific standards, and states’ longstanding authority to regulate healthcare access and delivery. States have long enjoyed the right to enable easier access to FDA- approved medications when legislators determine appropriate, so long as their actions do not contravene FDA’s approval and distribution decisions.

State legislators also rely on the FDA’s determination of whether a pharmaceutical drug is approved for distribution in the United States, and then regulate from that baseline to make healthcare accessible based on their constituents’ needs and preferences. By second-guessing the FDA’s actions modifying the baseline requirements for safe distribution and use of mifepristone, the Fifth Circuit has disrupted the state-level democratic processes to address abortion access set in motion by Dobbs.

For these reasons, the Court should grant the petitions for a writ of certiorari and overturn the Fifth Circuit’s decision—reaffirming state legislators’ authority over abortion access issues, consistent with this Court’s stated intention in Dobbs [U.S. Food and Drug Administration, et al., v. Alliance for Hippocratic Medicine, et al., and Danco Laboratories, LLC, v. AHM et al., “Brief of Over 600 State Legislators as Amici Curiae in Support of Petitioners: Introduction and Summary of Argument,” U.S. Supreme Court, 2023.10.12, pp. 2–3].

The legislators’ brief is among 14 posted yesterday to the FDA/Danco v AHM docket, Other friends of the court and women’s rights include local governments, FDA law scholars, the Big Pharma lobby and various drugmakers and investors, 257 members of Congress, and 23 states and the District of Columbia. Reps. Duba and Wittman appear to be the only prominent South Dakotans speaking up in defense of legitimate science and women’s medical rights.