AG Kris Kobach's remarks on mifepristone hearing

After the overturning of Roe v. Wade in 2022, the Alliance for Hippocratic Medicine sued the Food and Drug Administration (FDA) over its approval of mifepristone, a drug used for abortions since its approval in 2000. However, argument is focusing on how the FDA made obtaining the medication abortion easier in 2016 and again in 2021.

The FDA and the drugmaker, Danco, have said that the prescribing rules don’t harm the challengers and therefore they have no standing to bring the case. Furthermore, the FDA made its decision by following correct procedure and scientific evidence.

Kansas Attorney General Kris Kobach (R) spoke on the steps of the U.S. Supreme Court following oral arguments on Tuesday, March 26. The following is a transcript of what he said:

“The actions of the FDA here are not only injurious to the unborn with dangerous consequences to the mothers, but also they injure states’ rights with dangerous consequences to our constitution. In the wake of the Dobbs decision, the regulation of abortion was returned to the states where it originally rested under our constitution with the exception of the erroneous departure during the Roe era.

“By unlawfully creating a system where abortion pills can be mailed to individuals in any one of the 50 states without a physician present, without an in-person doctor’s appointment, and without any medical examinations afterward regardless of what the state laws require, and regardless of the fact that that state may not allow abortion by mail, the FDA has overridden state laws with the stroke of a bureaucrat’s pen.

“After the FDA’s decision and in spite of the Dobbs ruling, private organizations started mailing abortion drugs into all 50 states in large quantities. In less than one month in the summer of 2023, seven U.S.-based providers mailed 3,500 doses of mifepristone into states that had banned the use of chemical abortions or had prohibited the distribution of those chemicals by mail. Let me make that clear. 3,500 cases that were violating state laws in less than one month. The FDA has radically interfered with state’s sovereign authority to set abortion policy. Indeed, the Dobbs court described abortion as one of the most profound issues of public policy. The court clearly left it to the states to determine whether abortion would be permitted and under what circumstances. Each state, regardless of where they stand on this issue, each state has a sovereign interest in deciding that issue for itself and in compliance with the wishes of the people of that state. Abortion is one of those public policy areas that the court has very clearly said resides in the states.

“Our state legislators determine that abortion drugs must be dispensed in person, not through mail. They had good reason for doing so. Chemical abortions not only result in far higher percentages of complications resulting in trips to the emergency room, but they also open the door to coerced abortions. Without a physician present, it’s far easier for a boyfriend to coerce a woman to take the abortion pill or to slip it into her drink.

“Regardless, each state is free to make these decisions and assess the risks for itself. That is the essence of the Federalists model that is woven into our constitution. The Founding Fathers never imagined that the federal government would interfere with the states’ rights to regulate abortion, much less that an unelected agency of the federal government would basically sweep aside all of those laws that were so hotly debated in the state legislatures. That is why we states have intervened in this lawsuit. We stand with the physician plaintiffs here, but we also stand in defense of the constitutional authority of each state to decide these policy matters for itself.”