The state of Alaska joined a federal lawsuit Friday that seeks to overturn the Food and Drug Administration’s decades-old approval of a pill used for abortions.
The lawsuit was filed in a Texas federal court in November by the anti-abortion group Alliance for Hippocratic Medicine. It seeks to revoke the FDA’s approval of mifepristone, which is commonly used in conjunction with misoprostol to induce abortions.
Twenty-two Republican attorneys general — including Alaska Attorney General Treg Taylor — filed a brief Friday in favor of overturning the FDA’s approval of the pill. Their brief said that the FDA’s approval process of mifepristone had been “deeply flawed” and argued its use without the supervision of a physician increased risks. The FDA says it determined mifepristone is safe and effective for women after “a thorough and comprehensive review.”
Since the U.S. Supreme Court overturned Roe v. Wade last year, the plaintiffs said that Democratic President Joe Biden’s administration had worked to increase the availability of the abortion pill nationwide, including in states that had passed measures to restrict abortion access. The plaintiffs said that undermines “the public interest in the enforcement of validly enacted state laws.”
Trump-appointed Judge Matthew Kacsmaryk is expected to issue a ruling around Feb. 24, which could block access to the drug nationwide, but appeals are expected. Before joining the judiciary, Kacsmaryk served as deputy counsel to the First Liberty Institute, a conservative Christian law firm.
Mifepristone was first approved by the FDA in 2000 for abortions. It has long been considered a safe and attractive alternative to surgical procedures to terminate pregnancies.
Twenty-two Democratic attorneys general filed a brief in support of the status quo, and said that blocking the sale of the pill would have “devastating consequences.”
Pills are used in more than half of abortions across the country. In Alaska, they are used in just over one-third of pregnancy terminations.
[FDA decision could increase access to abortion pills across Alaska]
“Mifepristone has been proven to be safe and effective, and removing it potentially as an option is not about medicine or taking care of our communities — it’s just about power and control,” said Rose O’Hara-Jolley, director of Planned Parenthood Alliance Advocates of Alaska.
Abortion access in Alaska is protected by the Alaska Constitution’s privacy clause and several Alaska Supreme Court rulings. But conservatives have long tested the limits of those protections.
A spokesperson for Republican Gov. Mike Dunleavy declined to comment on whether the governor supported the state of Alaska joining the lawsuit, and referred questions to the state Department of Law.
“This is an issue for each state to determine,” said Patty Sullivan, a spokesperson for the department, about why the state had joined the lawsuit. She said the federal government should not try to subvert state laws.
“Under Alaska law, abortions remain legal, and any approved medication can be dispensed by a pharmacist with a valid prescription,” Sullivan said in a prepared statement.
In his annual address to the Legislature last month, Dunleavy said that he wanted to “make Alaska the most pro-life state in the entire country.” But he did not explicitly mention abortion.
Dunleavy did say to legislators that “through the actions we’ll take together, when people ask, ‘Which of the 50 states values children and families the most from the moment of conception on?’ They’ll say ‘Alaska.’ ”
After Roe v. Wade was overturned last June, Dunleavy said that he would introduce a constitutional amendment this year so Alaskans could decide on the future of abortion in the state. The promised amendment has not been introduced and the governor’s office did not respond to a request asking if that is forthcoming.
Palmer Republican Sen. Shelley Hughes — who sits in a three-member minority — has revived her constitutional amendment, which would exclude abortion from the state’s constitutional privacy protections. But the bipartisan Senate majority coalition has indicated it is not interested in debating divisive social issues.
Last month, the FDA updated its regulations, allowing for abortion pills to be dispensed at chain and local pharmacies through the mail. Abortion advocates applauded the change, arguing that it had the potential to expand abortion across Alaska, particularly in rural parts of the state.
“We’re effectively a blue state on this question,” said Anchorage Democratic Rep. Andy Josephson, referring to polling which has consistently shown that around 60% of Alaskans support abortion access. Josephson said he could somewhat understand why a more Republican-leaning state would challenge how the pill is now being dispensed by mail, but he couldn’t understand why Alaska had joined the lawsuit.
“It struck me as punitive because the whole procedure is legal here, anyway,” Josephson said.
No legislation has been introduced this year in the House to limit abortion access. Homer Republican Rep. Sarah Vance said she was concerned about the FDA’s recent changes to accessing the abortion pill, and that she supported the state joining the federal lawsuit.
“I share similar concerns about women’s health,” she said.
Mara Kimmel, executive director of the ACLU of Alaska, said that the civil rights legal firm is determining its next steps in how it can help protect abortion access in Alaska. Kimmel said she was “disappointed” with the Dunleavy administration’s decision.
“I think that this is an effort to undermine the will of Alaskans who definitely support a woman’s right to choose and the right to determine your own health care,” she said.
Access to the abortion pill in Alaska has been challenged in the past by the state. In 2021, Anchorage Superior Court Judge Josie Garton granted a request from Planned Parenthood to allow advanced practice clinicians to provide abortion pills while an underlying case proceeded. The state had sought to restrict access to mifepristone “without sufficient legal justification,” Garton said. A trial in that case is set to begin in late March.