In State of Washington v. U.S. Food and Drug Administration, (9th Cir., July 24, 2024), the U.S. 9th Circuit Court of Appeals refused to permit the state of Idaho (and 6 other states) to intervene in a lawsuit brought by a group of states led by the state of Washington challenging the FDA's restrictions on pharmacies' dispensing of the abortion pill mifepristone. FDA regulations adopted in 2021 allow mifepristone to be dispensed by pharmacies in retail locations or by mail, but only if the pharmacy is specially certified to do so. Washington's lawsuit contends that the certification and documentation requirements are unnecessary. Idaho, on the other hand, wants the court to order the FDA to go back to earlier requirements that only allowed mifepristone to be dispensed in person by a physician and did not allow it to be obtained directly from pharmacies. The court concluded that because Idaho seeks fundamentally different relief that does Washington, it must establish its own standing in order to intervene. The court concluded that Idaho did not have separate standing, saying in part:
Idaho first alleges that elimination of the in-person dispensing requirement will cause the state economic injury in the form of increased costs to the state’s Medicaid system. At oral argument, Idaho stated that this is its “strongest basis” for standing. Even taking Idaho’s highly speculative allegations as true, the complaint does not demonstrate an injury-in-fact because it depends on an attenuated chain of healthcare decisions by independent actors that will have only indirect effects on state revenue....
Idaho next alleges that elimination of the in-person dispensing requirement will harm its sovereign interest in law enforcement by making illegal mifepristone use harder to detect. This allegation is insufficient to convey standing because nothing in the 2023 REMS impairs Idaho’s sovereign authority to enact or enforce its own laws regulating chemical abortion....
Finally, Idaho alleges that elimination of the in-person dispensing requirement will harm its “quasi-sovereign interest” in maternal health and fetal life. Idaho cannot sue FDA on this basis because the allegations concern the interests of individual citizens—not the separate interests of the state itself....
Courthouse News Service reports on the decision. [Thanks to Thomas Rutledge for the lead.]
