The ongoing case of FDA v. Alliance for Hippocratic Medicine is set to be the first abortion related decision by the US Supreme Court since its Dobbs ruling. Expert opinion suggests the case may be resolved on standing grounds, due to the interest in standing shown by justices during the oral arguments. The case revolves around two administration actions taken by the Food and Drug Administration to relax regulations around mifepristone, a drug used to terminate pregnancies at early stages.
The strategic role of state attorneys general in this high-stakes litigation is highlighted by the legal maneuver called intervention. A group of state attorneys from Missouri, Idaho, and Kansas filed a motion to intervene, hoping to add additional plaintiffs in the ongoing case. Following this, these three states also moved to intervene at the Supreme Court level.
The states believe their intervention would ensure that the merits of the case can be examined, because their standing – in this case predicated on direct monetary harm to state-run insurance programs and hospitals, and harm to States’ sovereign interests – is firmly established. They also argue that intervention at this stage would be an efficient move that would prevent further rounds of appeals to the Supreme Court, in the event of dismissal due to private plaintiffs lacking standing.
The FDA, however, has challenged the states’ motion to intervene at both levels, arguing that assertions of monetary and sovereign injuries are too attenuated to satisfy Article III standing. It also states that the district court that grants preliminary relief to parties lacking Article III standing cannot protect its error by allowing third parties to intervene. If the Supreme Court rules the private plaintiffs lack standing, the FDA argues, the legal implication is that the district court never had jurisdiction over the case.
The Supreme Court has denied the intervention by states, but this leaves open a difficult procedural question of whether the states’ successful intervention at the district court level can revive the case if it gets concluded that the private plaintiffs lack standing. It is yet to be seen how this, and the strategic role of attorneys general, shapes the outcome of this medically important case (FDA v. Alliance for Hippocratic Medicine).