US pharma group urges supreme court to preserve FDA power over abortion pill

A top trade group for pharmaceutical companies has asked the US supreme court not to shred the power of the Food and Drug Administration (FDA) in an upcoming case that could cut access to a drug commonly used in abortions. But in a move that appears to undermine its own position, it has also given more than $125,000 to a GOP organization that backs the Republicans who want the supreme court to do exactly the opposite.

The trade group, Pharmaceutical Research and Manufacturers of America, or PhRMA, lobbies on behalf of brand-name drug manufacturers. In October and January, it filed briefs in an upcoming supreme court case that threatens to curtail access to a common abortion drug called mifepristone.

The high court will consider a ruling by the conservative fifth circuit court of appeals that, if upheld, would significantly roll back access to the drug, which has been expanded in a series of regulatory actions by the FDA. The supreme court justices may also rule on some of the more technical elements of the case, such as whether the anti-abortion activists have the legal right to bring the case in the first place.

Dragging the FDA into the United States’ abortion wars could have vast consequences for all kinds of drugs, PhRMA warned in its January brief.

“For decades, biopharmaceutical companies, healthcare providers, patients, and other stakeholders have relied on FDA’s expert scientific judgment on drug approval, labeling, and post-approval marketing requirements,” lawyers for PhRMA wrote. The federal appeals court ruling, they added, “threatens limitless litigation by inviting virtually any healthcare provider to bring suit to challenge any drug approval or subsequent change”.

Yet according to research by Accountable.US that has been independently verified by the Guardian, in May 2023, PhRMA gave more than $125,000 to the Republican Attorneys General Association (Raga), which seeks to elect and re-elect GOP state attorneys general. Just a few weeks before that donation, 19 of the Republican state attorneys general within Raga filed a brief with the supreme court alleging that the FDA’s approval of mifepristone had “basic legal flaws”. The agency’s approach to mifepristone, the attorneys general suggested, even defied federal law.

In January 2023, several of those attorneys general also sent a letter to the FDA’s commissioner accusing the agency of having “abdicated its responsibility to protect women’s health”.

A few months later, in April 2023, a Texas federal judge ruled in favor of a coalition of anti-abortion groups who asked him to entirely suspend the FDA’s 2000 authorization of mifepristone. The fifth circuit narrowed that ruling, rolling back more recent measures by the FDA that, since 2016, have expanded access to mifepristone. The Biden administration and mifepristone’s manufacturer have appealed that decision to the supreme court.

More than 100 different studies, conducted over several years and countries, have concluded that mifepristone is safe, a 2023 New York Times review found.

“PhRMA claims to oppose this lawsuit that could deny women access to the safe, widely-used mifepristone, yet they bankrolled the top political group for anti-choice attorneys general who further threaten access,” Caroline Ciccone, president of the non-partisan government watchdog group Accountable.US.

Trade groups like PhRMA don’t typically give donations to pursue some ideological goal, according to Sarah Bryner, director of research and strategy of OpenSecrets, which tracks money in US politics. They are interested in getting their lobbyists into the offices of whoever is in power.

“They’re seeking access to members [of Congress] and elected officials, once those people take office,” Bryner said. “We’ve heard from members in the past saying that there’s 24 hours in a day and you have to sleep, so who are you going to have meetings with? Typically, you’ll want to have meetings with constituents and then also the people who give you money.”

To better their chances of maintaining that access, corporations and the groups that represent their interests frequently and quietly donate to both sides of the aisle in US politics. Three weeks after it made a donation of $125,000 to the Republican Attorneys General Association, PhRMA gave another $125,000 to the group’s Democratic rival, the Democratic Attorneys General Association.

Even political earthquakes rarely shake their approach to political giving. When the US supreme court overturned Roe v Wade, major US companies that indicated they would help employees evade state abortion bans continued to financially support political candidates who backed abortion bans, a Guardian analysis found. After the US Capitol riots on 6 January 2021, several major companies vowed to suspend or reconsider their donations to politicians who declined to certify the results of the 2020 election. But by early 2023, more than 70 companies who’d made such promises gave more than $10m to election deniers, Politico reported.

“You might hear messaging, you might see temporary breaks in giving and you might see people not give to people who are very outspoken and at the fringes like Marjorie Taylor Greene, for example, or people in Alabama right now,” Bryner said. “But I think, generally, bipartisan giving is not going anywhere.”

“We engage with different groups who have a wide array of different policy opinions and priorities,” Alex Schriver, senior vice-president of public affairs at PhRMA, said in a statement. “We may not agree on every issue, but we believe engagement and dialogue is important to promoting a health care policy environment that supports innovation, a highly-skilled workforce and access to life-saving medicines.”

The rulings curtailing the availability of mifepristone are now on hold. The US supreme court will hear oral arguments in the case in late March.