Amicus Curiae Brief — GenBioPro, Inc., Applicant v. Louisiana, et al.

Supreme Court briefMay 7, 2026

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No. 25A-1208

In the Supreme Court of the United States

GENBIOPRO, INC.,

Applicant,

LOUISIANA, ET AL.,

Respondents.

Regarding Emergency Application to Vacate

Stay Pending Appeal and Request for

Administrative Stay

BRIEF OF AMICUS CURIAE NEBRASKA AND 22

OTHER STATES OPPOSING VACATUR OF THE

STAY PENDING APPEAL

MICHAEL T. HILGERS

Attorney General of

Nebraska

CODY S. BARNETT

Solicitor General

Counsel of Record

Nebraska Department of Justice

1445 K Street, Room 2115

Lincoln, Nebraska 68508

Tel.: (402) 471-2683

cody.barnett@nebraska.gov

ZACHARY A. VIGLIANCO

Principal Deputy Solicitor General

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

Introduction and Statement of Interest ..................... 1

Reasons for Denying the Request for Vacatur ............ 6

I. Louisiana’s Sovereign Interest in Enforcing

Its Own Law Confers Standing ....................... 6

II. Louisiana Has Also Established Pocketbook

Harm .............................................................. 15

Conclusion ................................................................. 23

TABLE OF AUTHORITIES

Page(s)

Cases

Alfred L. Snapp & Son, Inc. v. Puerto

Rico ex rel. Barez,

458 U.S. 592 (1982) ......................................... 7, 12

All. for Hippocratic Medicine v. FDA,

2023 WL 2913725 (5th Cir. Apr. 12,

2023)............................................................... 16, 20

Biden v. Nebraska,

600 U.S. 477 (2023) ............................................. 15

Bond v. United States,

564 U.S. 211 (2011) ............................................. 10

Bost v. Ill. State Bd. of Elecs.,

607 U.S. ---, 146 S. Ct. 513 (2026) ................... 6, 15

Brown v. Fletcher’s Est.,

210 U.S. 82 (1908) ............................................... 10

Cameron v. EMW Women’s

Surgical Ctr.,

595 U.S. 267 (2022) ..................................... 7, 8, 13

Carroll v. Lanza,

349 U.S. 408 (1955) ............................................. 11

Ohio ex rel. Celebrezze v. U.S. Dep’t of

Transp.,

766 F.2d 228 (6th Cir. 1985) ................................. 8

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ............................................. 12

iii

Cases—continued

Dep’t of Com. v. New York,

588 U.S. 752 (2019) ............................................. 14

Diamond Alternative Energy, LLC v.

EPA,

606 U.S. 100 (2025) ............................................. 22

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ................................... 1, 2, 8, 9

FDA v. Alliance for Hippocratic

Medicine,

602 U.S. 367 (2024) ............................................. 21

FDA v. Brown & Williamson Tobacco

Corp.,

529 U.S. 120 (2000) ............................................... 9

First Choice Women’s Res. Ctrs., Inc. v.

Davenport,

608 U.S. ---, 2026 WL 1153029

(2026) ................................................................... 14

GenBioPro, Inc. v. Raynes,

144 F.4th 258 (4th Cir. 2025) ................................ 7

Florida v. FDA, Case No. 7:25-cv-0126

(N.D. Tex.) .............................................................. 7

Gregory v. Ashcroft,

501 U.S. 452 (1991) ............................................. 11

Hughes v. Fetter,

341 U.S. 609 (1951) ............................................. 11

Cases—continued

Maine v. Taylor,

477 U.S. 131 (1986) ......................................... 8, 13

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) ............................................... 9

Metro. Life Ins. Co. v. Massachusetts,

471 U.S. 724 (1985) ............................................... 8

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) ............................................. 13

Nat’l Pork Producers Council v. Ross,

598 U.S. 356 (2023) ................................. 10, 11, 12

New York v. New Jersey,

598 U.S. 218 (2023) ............................................... 9

Tennessee v. U.S. Dep’t of Educ.,

615 F. Supp. 3d 807 (E.D. Tenn.

2022)..................................................................... 13

Tex. Office of Pub. Util. Counsel v. FCC,

183 F.3d 393 (5th Cir. 1999) ................................. 7

Texas v. United States,

50 F.4th 498 (5th Cir. 2022) ................................ 16

Texas v. United States,

606 F. Supp. 3d 437 (S.D. Tex. 2022).................. 19

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) ............................... 13

Cases—continued

Toomer v. Witsell,

334 U.S. 385 (1948) ............................................. 11

United States v. Texas,

599 U.S. 670 (2023) ................................. 17, 18, 19

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ............................................... 9

West Virginia v. EPA,

597 U.S. 697 (2022) ............................................... 9

World-Wide Volkswagen Corp. v.

Woodson,

444 U.S. 286 (1980) ............................................. 10

Statutes

Ala. Code § 26-23E-7................................................... 1

Ala. Code § 26-23H-4 .................................................. 1

Ark. Code Ann. § 5-61-304.......................................... 1

Ark. Code Ann. § 20-16-1504 ...................................... 1

Fla. Stat. Ann. § 390.0111 .......................................... 1

Fla. Stat. Ann. § 456.47 .............................................. 1

Ga. Code Ann. § 16-12-140 ......................................... 1

Ga. Code Ann. § 16-12-141 ......................................... 1

Idaho Code Ann. § 18-607........................................... 1

Statutes—continued

Idaho Code Ann. § 18-608........................................... 1

Idaho Code Ann. § 18-617........................................... 1

Idaho Code Ann. § 18-622........................................... 1

Ind. Code § 16-18-2-1 .................................................. 1

Ind. Code § 16-34-2-1 .................................................. 1

Iowa Code § 146C.2..................................................... 1

Iowa Code § 146E.2..................................................... 1

Ky. Rev. Stat. § 311.772 ............................................. 1

Ky. Rev. Stat. §§ 311.7731–.7739 ............................... 1

La. R.S. 40:1061.11 ..................................................... 7

Miss. Code Ann. § 41-41-34.1 ..................................... 1

Miss. Code Ann. § 41-41-45 ........................................ 1

2026 Miss. Laws, H.B. 1613 (Mar. 31,

2026)....................................................................... 1

Mo. Rev. Stat. § 188.021 ............................................. 2

Mo. Rev. Stat. § 188.056 ............................................. 1

Mo. Rev. Stat. § 188.057 ............................................. 1

Mo. Rev. Stat. § 188.058 ............................................. 1

Mont. Code Ann. § 50-20-109 ..................................... 1

vii

Statutes—continued

Mont. Code Ann. § 50-20-704 ..................................... 2

Neb. Rev. Stat. § 28-335 ............................................. 1

Neb. Rev. Stat. § 28-3,106 .......................................... 1

Neb. Rev. Stat. § 71-6915 ........................................... 1

Okla. Stat. Title 21, § 861........................................... 1

Okla. Stat. Title 63, § 1-731.4 .................................... 1

S.C. Code Ann. § 44-41-630 ........................................ 1

S.D. Codified Laws § 22-17-5.1................................... 1

2026 S.D. Sess. Laws, H.B. 1274 (Mar.

30, 2026) ................................................................ 2

Tenn. Code Ann. § 39-15-213 ..................................... 1

Tenn. Code Ann. § 63-6-1103 ..................................... 2

Tex. Health & Safety Code § 170A.002 ...................... 1

Tex. Health & Safety Code § 171.063 ........................ 2

Tex. Health & Safety Code § 171A.051 ...................... 2

Utah Code Ann. § 76-7-302 ........................................ 1

Utah Code Ann. § 76-7-332 ........................................ 2

Utah Code Ann. § 76-7a-201 ...................................... 1

W. Va. Code § 16-2R-3 ................................................ 1

viii

Statutes—continued

W. Va. Code § 30-1-26 ................................................. 2

Wyo. Stat. Ann. §§ 33-1-401–403 ............................... 2

Wyo. Stat. Ann. §§ 35-6-301–302 ............................... 2

Wyo. Stat. Ann. §§ 35-6-401–404 ............................... 1

Other Authorities

Jonathan Adler, Could Congress

Prohibit Abortion If Roe Overturned

(Updated), Volokh Conspiracy (June

2, 2022)................................................................... 9

Rachel Bluth, Louisiana Wants a

California Face Abortion Charges.

Newsome Isn’t Having It., Politico

(Jan. 14, 2026) ....................................................... 7

Executive Order 14076, Protecting

Access to Reproductive Healthcare

Services, 87 Fed. Reg. 42053 ................................. 2

Fact Sheet: President Biden to Sign

Executive Order Protecting Access to

Reproductive Health Care Services

(July 8, 2022) ......................................................... 2

Seth F. Kreimer, Lines in the Sand: The

Importance of Borders in American

Federalism, 150 U. Pa. L. Rev. 973,

975 (2002) .............................................................. 8

Other Authorities—continued

Letter from 17 Attorneys General to the

Senate Committee on Health,

Education, Labor and Pensions (Jan.

13, 2026)................................................................. 3

Antonin Scalia, The Doctrine of

Standing as an Essential Element of

the Separation of Powers, 17 Suffolk

U. L. Rev. 881, 882 (1983) ..................................... 6

Society of Family Planning,

#WeCount report, April 2022 to June

2025 (Dec. 9, 2025) ...................................................... 3

Citations to the Fifth Circuit’s decision granting

a stay pending appeal and the underlying decision of

the United States District Court for the Western

District of Louisiana are indicated by citation to the

appendix (App.) filed by applicant GenBioPro.

INTRODUCTION

AND STATEMENT OF INTEREST

States have always had a “legitimate interest[]” in

protecting unborn life. Dobbs v. Jackson Women’s

Health Org., 597 U.S. 215, 301 (2022). For nearly fifty

years, however, they were stymied in how they could

pursue that interest. That changed in 2022, when

this Court “return[ed] the issue of abortion to the

people’s elected representatives.” Id. at 232. After

Dobbs, States can now enact and enforce laws that

regulate or restrict the availability of abortion “based

on their belief that abortion destroys an ‘unborn

human being.’” Id. at 256.

Amici States Nebraska, Alabama, Arkansas,

Florida, Georgia, Idaho, Indiana, Iowa, Kansas,

Kentucky, Mississippi, Missouri, Montana, North

Dakota, Ohio, Oklahoma, South Carolina, South

Dakota, Tennessee, Texas, Utah, West Virginia, and

Wyoming have adopted such laws1—including laws

that regulate chemical abortion.2 These laws

1 See Neb. Rev. Stat. §§ 71-6915(2), 28-3,106; Ala. Code § 26-

23H-4; Ark. Code Ann. § 5-61-304; Fla. Stat. Ann. § 390.0111; Ga.

Code Ann. § 16-12-141; Idaho Code Ann. §§ 18-608, 622; Ind.

Code § 16-34-2-1; Iowa Code §§ 146C.2, 146E.2; Ky. Rev. Stat.

§ 311.772; Miss. Code Ann. §§ 41-41-34.1, 41-41-45; Mo. Rev.

Stat. §§ 188.056–.058; Mont. Code Ann. § 50-20-109; N.D. Cent.

Code Ann. § 12.1-19.1-02; Okla. Stat. tit. 63, § 1-731.4; S.C. Code

Ann. § 44-41-630; S.D. Codified Laws § 22-17-5.1; Tenn. Code

Ann. § 39-15-213; Tex. Health & Safety Code § 170A.002; Utah

Code Ann. §§ 76-7a-201, 76-7-302; W. Va. Code § 16-2R-3; Wyo.

Stat. Ann. §§ 35-6-401–404.

2 Neb. Rev. Stat. § 28-335; Ala. Code § 26-23E-7; Ark. Code

Ann. § 20-16-1504; Fla. Stat. Ann. § 456.47(2)(f); Ga. Code

represent the considered judgments of “the people

and their elected representatives” after hard-fought

democratic deliberation. Dobbs, 597 U.S. at 259.

Rather than respect these States’ efforts to protect

prenatal life, the federal government has often

undermined them. Most notably, in the immediate

wake of this Court’s decision in Dobbs, President

Biden avowed that chemical abortion drugs would

remain “as widely accessible as possible.”3 His pledge

emphasized efforts to both maintain and expand

access to mifepristone, including via telehealth

prescription, which in turn facilitates the shipment of

chemical abortion drugs across state lines—from proabortion States into those where abortion is more

tightly regulated.4

Following up on that presidential proclamation, in

2023 the Food and Drug Administration (FDA)

promulgated a Risk Evaluation and Mitigation

Ann. § 16-12-140; Idaho Code Ann. §§ 18-607, 617(2); Ind. Code

§§ 16-18-2-1, 16-34-2-1(a)(1); Ky. Rev. Stat. §§ 311.7731–.7739;

2026 Miss. Laws, H.B. 1613 (Mar. 31, 2026); Mo. Rev. Stat.

§ 188.021(1); Mont. Code Ann. § 50-20-704; N.D. Cent. Code

Ann. §§ 14-02.1-03.5; Okla. Stat. tit. 21, § 861; 2026 S.D. Sess.

Laws, H.B. 1274 (Mar. 30, 2026); Tenn. Code Ann. § 63-6-1103;

Tex. Health & Safety Code §§ 171.063, 171A.051; Utah Code

Ann. § 76-7-332; W. Va. Code § 30-1-26(b)(9); Wyo. Stat. Ann.

§§ 33-1-401–403, 35-6-301–302.

3 See Fact Sheet: President Biden to Sign Executive Order

Protecting Access to Reproductive Health Care Services (July 8,

2022), https://perma.cc/9VML-4YCA.

4 Ibid. See also Executive Order 14076, Protecting Access to

Reproductive Healthcare Services, 87 Fed. Reg. 42053 (July 8,

2022).

Strategy (REMS) to govern mifepristone that

removed the long-standing requirement that

mifepristone be dispensed in-person and allowed the

drug to be prescribed via telehealth. Even though

many States—like Nebraska—require a prescribing

doctor to be physically present, the 2023 REMS

permits doctors in California and New York (and any

other pro-abortion jurisdiction) to prescribe

mifepristone to out-of-state patients via telehealth.

Thus, the 2023 REMS allows out-of-state doctors to

prescribe mifepristone and arrange for its shipment

to other jurisdictions without regard for the

requirements of those States’ laws and largely free

from consequence.5

Seeking to protect its sovereign prerogatives and

mitigate direct pocketbook harms, Louisiana brought

an APA challenge to the 2023 REMS. A district court

“agreed that Louisiana was likely to win its

challenge … and was suffering irreparable harm

from [the 2023 REMS].” App.2a. See also App.46a.

Nevertheless, the district court “declined to stay” the

2023 REMS “based on its balancing of the equities

and the public interest.” App.2a. See also App.47a–

See Society of Family Planning, #WeCount report, April

2022 to June 2025 (Dec. 9, 2025), https://perma.cc/Z765-EUXB

(noting that telehealth abortions have “continued to increase”

and that “[s]hield laws continue to facilitate abortion access”);

Letter from 17 Attorneys General to the Senate Committee on

Health, Education, Labor and Pensions (Jan. 13, 2026),

https://perma.cc/RY5H-B53G (describing how shield-state

residents are “mailing abortion drugs” to women in States where

abortion is tightly regulated and usually illegal).

53a. Louisiana appealed to the Fifth Circuit, seeking

a stay pending appeal. App.2a.

The Fifth Circuit granted Louisiana’s request for

a stay. Ibid. The court of appeals agreed with the

district court that Louisiana was likely to succeed on

the merits and was facing the prospect of irreparable

harm. App.14a–15a. But it came to a different

conclusion regarding the other stay factors. The court

of appeals found that Louisiana’s “sovereign interest

in its laws protecting the unborn and the public’s

interest in not exposing women to unsafe medical

procedures” outweighed GenBioPro’s countervailing

interests. App.16a–18a. That determination, in

tandem with Louisiana’s likelihood of success and the

prospect of irreparable harm, led the Fifth Circuit to

stay the 2023 REMS while proceedings below

continue. App.18a.

GenBioPro now asks this Court to vacate the stay

of the 2023 REMS. Amici States urge the Court to

leave it in place. Like Louisiana, the Amici States are

suffering ongoing harms directly traceable to the

proliferation of chemical abortion drugs made

possible by the 2023 REMS.6 These harms—both

sovereign and pecuniary—are irreparable. App.14a–

15a. Maintaining the stay will ameliorate these

harms while still allowing FDA to conduct its ongoing

review of mifepristone’s overall safety and efficacy.

App.17a. And, despite GenBioPro’s overwrought

contentions that the stay has “unleashed regulatory

6 See also, e.g., Missouri v. FDA, Case No. 4:25-cv-01580 (E.D.

Mo.); Florida v. FDA, Case No. 7:25-cv-0126 (N.D. Tex.).

chaos” and will “abruptly cutting off access for

patients nationwide,” Emergency Application to

Vacate Stay Pending Appeal and For An

Administrative Stay (“Emgy. Appl.”) 3, the impact of

the stay is more modest. As the Fifth Circuit

explained, the stay only “pause[s] a method of

prescribing mifepristone that began five years ago

and was formally approved only three years ago.”

App.16a. Mifepristone can still be legally prescribed,

sold, and distributed under the legal regime that

prevailed prior to the 2023 REMS.

The practical effect of the stay, then, is the

preservation of Louisiana’s and the Amici States’

sovereign prerogative to regulate abortion as their

citizens see fit. To be sure, the stay will undermine

efforts, emanating from pro-abortion jurisdictions, to

flout the Amici States’ duly enacted abortion

regulations and restrictions. That is a feature, not a

bug. As the Fifth Circuit explained, there is no

legitimate interest in “continuing unlawful agency

action.” App.5a. And even FDA concedes that the

2023 REMS was likely unlawful. Ibid. See also

App.17a, 45a–46a, 49a. Accordingly, the Fifth Circuit

rightly issued a stay. This Court should reject

GenBioPro’s request to vacate.

REASONS FOR DENYING THE

REQUEST FOR VACATUR

Amici States agree with GenBioPro that this

Court will likely review this case on the merits if the

proceedings below result in the 2023 REMS being set

aside. See Emgy. Appl. 14 (“this case readily satisfies

the reasonable-probability-of-review standard”). But

the Amici States vigorously dispute GenBioPro’s

follow-on contention that if this Court were to review

the merits “it would likely reverse.” Id. at 16.

GenBioPro’s lead argument in favor of ultimate

reversal is its claim that “Louisiana Lacks Article III

Standing.” Ibid.

Not so. On the contrary, Louisiana has plausibly

established two separate theories of standing. Either

independently suffices to confer Article III standing.

Louisiana’s Sovereign Interest in

Enforcing Its Own Law Confers Standing.

To have standing, Louisiana must “be able to

answer a basic question: ‘What’s it to you?’” Bost v.

Ill. State Bd. of Elecs., 607 U.S. ---, 146 S. Ct. 513,

519 (2026) (quoting Antonin Scalia, The Doctrine of

Standing as an Essential Element of the Separation

of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983)).

Louisiana has “an obvious answer.” Ibid. Through

the democratic process, the people of Louisiana have

enacted a limitation on chemical abortions: It is

required that the “drug or chemical [inducing an

abortion] shall be in the same room and in the

physical presence of the pregnant woman when the

drug or chemical is initially administered, dispensed,

or otherwise provided to the pregnant woman.” La.

R.S. 40:1061.11.

The 2023 REMS directly undermines this validly

enacted Louisiana statute. Indeed, the 2023 REMS

permits out-of-state doctors to do something that law

expressly forbids—remotely prescribe mifepristone.

And, as Louisiana has learned, bringing out-of-state

doctors who openly defy its law to justice is far from

easy.7

This direct interference with Louisiana’s ability

to enforce its own law inflicts a sovereign injury that

confers Article III standing. It is undisputed, in our

system of federalism, that the residual sovereignty of

the States includes “the power to create and enforce

a legal code.” Tex. Office of Pub. Util. Counsel v. FCC,

183 F.3d 393, 449 (5th Cir. 1999) (quoting Alfred L.

Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458

U.S. 592, 601–02 (1982)). Indeed, “paramount among

the States’ retained sovereign powers is the power to

enact and enforce any laws that do not conflict with

federal law.” Cameron v. EMW Women’s Surgical

Ctr., 595 U.S. 267, 277 (2022) (emphasis added). 8

7 Attempts to hold California doctors who have facilitated the

shipment of abortion-inducing drugs to Louisiana residents have

been unsuccessful. See, e.g., Rachel Bluth, Louisiana Wants a

California Doctor Extradited to Face Abortion Charges.

Newsome Isn’t Having It., Politico (Jan. 14, 2026),

https://perma.cc/3Y8M-Z4G5.

8 The Biden-era FDA argued that the 2023 REMS preempted

pro-life States’ restrictions on abortion. That’s not only wrong,

GenBioPro, Inc. v. Raynes, 144 F.4th 258, 267 (4th Cir. 2025)

And there is nigh-universal agreement that a State’s

enforcement authority includes the power to “punish

extraterritorial actions that have tangible impacts on

the territory over which they are sovereign.” Seth F.

Kreimer, Lines in the Sand: The Importance of

Borders in American Federalism, 150 U. Pa. L. Rev.

973, 975 (2002) (noting that “a shot fired across the

border” from one State into another is a classic

example where the latter’s “exercise of … criminal

authority”

over

extraterritorial

conduct

permitted). Our federalist system demands “respect”

for the place of States in exercising their “residuary

and inviolable sovereignty.” Cameron, 595 U.S. at

277 (internal quotation marks omitted). Thus, States

“clearly ha[ve] a legitimate interest in the continued

enforceability of [their] own statutes.” Maine v.

Taylor, 477 U.S. 131, 137 (1986).

The 2023 REMS undermines Louisiana’s

enforcement interests to a startling degree. Most

obviously, the 2023 REMS effectively imposes a

national scheme on an issue that (except, perhaps, by

way of unambiguous federal legislation) is

appropriately handled on a State-by-State basis. See

Dobbs, 597 U.S. at 302. After all, the States possess

“great latitude” to protect “the lives, limb, health,

comfort, and quiet of all persons.” Metro. Life Ins. Co.

v. Massachusetts, 471 U.S. 724, 756 (1985) (cleaned

(holding that the Food and Drug Administration Amendments

“fall[ ] well short of expressing a clear intention to displace the

states’ historic and sovereign right to protect the health and

safety of their citizens”), but it also underscores why Louisiana

has standing, see Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp.,

766 F.2d 228, 232–33 (6th Cir. 1985).

up). And “protect[ing] the people” within its borders

is a “fundamental aspect of a State’s sovereign

power.” New York v. New Jersey, 598 U.S. 218, 225

(2023). See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475

(1996).

Abortion is no exception. Dobbs, 597 U.S. at 302.

This Court has unequivocally held that “the

authority to regulate abortion must be returned to

the people and their elected representatives.” Dobbs,

597 U.S. at 292. Yet the 2023 REMS has displaced

individual States’ prerogatives on chemical abortion,

effectively federalizing the subject. Setting aside the

open question of whether a federalized abortion

policy is even permissible under the Constitution,9

there can be little doubt that only Congress could

establish such a policy, and, even then, it would

require federal legislators “speak clearly” given the

vast political significance of the issue. Util. Air

Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014). That

significance provides a strong “‘reason to hesitate’”

before concluding that Congress “meant to confer

[the] authority” to set national abortion policy to

FDA. West Virginia v. EPA, 597 U.S. 697, 700 (2022)

(quoting FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 159 (2000)).

9 See generally Kevin J. Hickey & Whitney K. Novak,

Congressional Research Service, LSB10787, Congressional

Authority to Regulate Abortion (July 8, 2022). Scholarly debate

on the question continues. See, e.g., Jonathan Adler, Could

Congress Prohibit Abortion If Roe Overturned (Updated) , The

Volokh Conspiracy (June 2, 2022), https://perma.cc/R9LZ-HL64.

The 2023 REMS also materially interferes with

horizontal federalism. The genius of our system of

federalism is that it allows for differing views and

approaches on important policy questions. See Bond

v. United States, 564 U.S. 211, 221–22 (2011). What

it does not allow is for a select few States—no matter

how populous or economically and politically

significant—to impose their policy preferences on all

others. See Nat’l Pork Producers Council v. Ross, 598

U.S. 356, 406–07 (2023) (Kavanaugh, J. concurring

and dissenting in part) (one State’s attempt to

“unilaterally impose its moral and policy

preferences … on the rest of the Nation …

undermines federalism and the authority” of other

States). California and New York have no license to

establish abortion policy for the entire Nation.

Yet that’s exactly what the 2023 REMS effectively

allows. Doctors in those jurisdictions (and any others

with pro-abortion policies) are empowered by the

combination of their home States’ lax regulation of

abortion and the 2023 REMS’s blessing of telehealth

mifepristone prescription to flout the law in

Louisiana and other similarly situated States.

This state of affairs inflicts a concrete sovereign

injury on Louisiana. By necessity, “[t]he sovereignty

of each State … implie[s] a limitation on the

sovereignty of all of its sister States.” World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 293

(1980). “The several States are of equal dignity and

authority, and the independence of one implies the

exclusion of power from all others.” Brown v.

Fletcher’s Est., 210 U.S. 82, 89 (1908). After all, the

Founders experienced how unfettered State

sovereignty could “cut[] off the lifeblood of the

Nation” and accordingly “discarded the Articles of

Confederation and adopted a new Constitution.”

Pork Producers, 598 U.S. at 404 (Kavanaugh, J.,

concurring and dissenting in part). Under that new

Constitution, each State was afforded wide latitude

to establish the policies that prevail within its

borders, a paradigm that allows “innovation and

experimentation

government,”

promotes “increase[d]

opportunity

for

citizen

involvement in democratic processes,” and,

ultimately, results in governments more attuned to

the

“diverse

needs

heterogenous

society.” Gregory v. Ashcroft, 501 U.S. 452, 458

(1991).

The Constitution repeatedly references the

respect States owe to their sister States. For

example, the Full Faith and Credit Clause imposes a

“constitutional obligation to enforce the rights and

duties validly created under the laws of other states.”

Hughes v. Fetter, 341 U.S. 609, 611 (1951); U.S.

Const. art. IV, § 1. “That Clause prevents States from

‘adopting any policy of hostility to the public Acts’ of

another State.” Pork Producers, 598 U.S. at 409

(Kavanaugh, J., concurring and dissenting in part)

(quoting Carroll v. Lanza, 349 U.S. 408, 413 (1955)).

And the Privileges and Immunities Clause similarly

bars “discrimination against citizens of other States

where there is no substantial reason for the

discrimination beyond the mere fact that they are

citizens of other States.” Toomer v. Witsell, 334 U.S.

385, 296 (1948); U.S. Const. art. IV, § 2. As Justice

Kavanaugh has recognized, “one State’s efforts” to

export its regulatory preferences into “other

States … raise[s] significant questions under that

Clause.” Pork Producers, 598 U.S. at 409

(Kavanaugh, J., concurring and dissenting in part).

The 2023 REMS effectively permits New York

and California doctors to export their regulatory

preference regarding chemical abortions to States

like Louisiana, directly and fatally undermining a

policy choice unambiguously enshrined in the latter’s

statutes. Because the 2023 REMS permits telehealth

prescribing of chemical abortifacients, a New York

doctor can circumvent a Louisiana enactment which

outlaws precisely that behavior. A California doctor

who prescribes a chemical abortifacient, via a

telehealth appointment, to a Louisiana resident

located in Louisiana at the time of the prescription

has, in practical effect, “fired a shot” across the

virtual border between those two States. Cf. p. 8,

supra. And, by way of the 2023 REMS, FDA has

handed that out-of-state doctor the gun.

This interference with Louisiana’s ability to

vindicate its public policy choices within its own

territory is a direct affront to its “sovereign interest.”

Snapp & Son, 458 U.S. at 601. And the 2023 REMS

is a but-for cause of the resulting harm—which gives

Louisiana all it needs to satisfy the standing inquiry.

After all, litigants have standing when they can point

to a “concrete, particularized, and actual or

imminent” harm. Clapper v. Amnesty Int’l USA, 568

U.S. 398, 409 (2013) (quoting Monsanto Co. v.

Geertson Seed Farms, 561 U.S. 139, 149 (2010)). And

“courts have recognized that States suffer a

cognizable injury for purposes of constitutional

standing when they allege an intrusion on their

ability to enforce their own legal code, whether by

way of direct interference or interference analogous

to substantial pressure to change state laws.”

Tennessee v. U.S. Dep’t of Educ., 615 F. Supp. 3d 807,

821 & n.7 (E.D. Tenn. 2022) (collecting cases).

Indeed, “a State clearly has a legitimate interest in

the continued enforceability of its own statutes.”

Taylor, 477 U.S. at 137. So “substantial” is a State’s

sovereign interest in “defend[ing] its laws” that this

Court has admonished lower courts that it “should

not be lightly cut off.” Cameron, 595 U.S. at 277.

This is exactly the rationale the Fifth Circuit

relied upon when it concluded Louisiana has

standing. It began by recognizing that “Louisiana

has a ‘sovereign interest in the power to create and

enforce a legal code.’” App.8a (quoting Texas v.

United States, 809 F.3d 134, 153 (5th Cir. 2015)). It

then recognized that the 2023 REMS “creates an

effective way for an out-of-state prescriber to place

the drug in the hands of Louisianans in defiance of

Louisiana law.” App.10a. This, the court concluded,

represents a substantial federal interference with

Louisiana’s ability to enforce its own legal code and

thus confers to standing to challenge the federal

action in question (the 2023 REMS). App.10a–11a.

GenBioPro resists this conclusion, but its

arguments fall short. It first argues that Louisiana is

not the “object of the federal regulation”—the 2023

REMS—the State challenges. Emgy. Appl. 17. That

contention blinks reality. It is irrelevant that the

2023 REMS does not, on its face, target Louisiana.

Cf. Mirabelli v. Bonta, 146 S. Ct. 797, 803 (2026)

(recognizing that the obvious “objects” of a policy

have standing to challenge it). As the Fifth Circuit

recognized, the purpose of the 2023 REMS is

manifestly apparent: “[E]nsuring out-of-state

medical providers could prescribe mifepristone to

women in states that restrict abortion” is “a goal of

the regulation.” App.10a. The Fifth Circuit was not

required to naively ignore “commonsense inferences”

when assessing both the fundamental purpose and

unavoidable impact of the 2023 REMS. Cf. First

Choice Women’s Res. Ctrs., Inc. v. Davenport, 608

U.S. ---, 2026 WL 1153029, at *7 (2026); Dep’t of Com.

v. New York, 588 U.S. 752, 785 (2019). Nor should

this Court.

GenBioPro also claims that Louisiana has

suffered no sovereign harm. According to GenBioPro,

the 2023 REMS does little more than “burden[] …

Louisiana’s enforcement efforts” and thus imposes

only an “attenuated downstream effect” that is

insufficient to confer standing. Emgy. Appl. 23. But,

again, neither the Fifth Circuit nor this Court is

required to ignore practical reality. It is true, as

GenBioPro posits, that “Louisiana remains free to

prohibit [or regulate] abortion and to enforce its laws

against those who violate them.” Ibid. But what

GenBioPro euphemistically refers to as a “practical

difficulty” drastically understates the case.

Louisiana has tried to enforce its prohibition on the

remote prescription of chemical abortifacients. See

n.7, supra. Such efforts have been stymied by this

recalcitrance—and sometimes more—of pro-abortion

States. See n.5, supra (collecting authorities

discussing the impact of “shield laws” which preclude

enforcement of laws or regulations related to

abortion against individuals in the shield-law

jurisdiction who facilitate abortions elsewhere).

Of course, sovereign States are entitled to choose

their own way on abortion policy. But that is not a

one-way street. California and Louisiana have

different ideas about how to properly regulate

chemical abortion drugs like mifepristone. So too

Nebraska and New York. The 2023 REMS privileges

the preferences of some States (those who favor

greater access to chemical abortifacients) to the

detriment of others (like Louisiana and the Amici

States) who think differently. That is precisely the

sort of sovereign harm that conveys Article III

standing to a State.

II.

Louisiana Has Also Established

Pocketbook Harm.

The sovereign harm inflicted on Louisiana is

sufficient to establish standing. So too are the economic

injuries inflicted. “Pocketbook harm is a traditional

Article III injury.” Bost, 146 S. Ct. at 524 (Barrett, J.,

concurring in the judgment). See also, e.g., Biden v.

Nebraska, 600 U.S. 477, 489–90 (2023). And a plaintiff

who “incurs costs to mitigate or avoid the substantial

risk of a harm caused by a [law],” Bost, 146 S. Ct. at 524

(Barrett, J., concurring in the judgment) has suffered a

pocketbook injury.

At this preliminary stage, Louisiana’s factual

allegations must be accepted as true. And as pled,

Louisiana has (and will continue to) suffer economic

injury that flows from the 2023 REMS. Without the

federal

government’s

imprimatur,

Louisiana’s

emergency rooms would only rarely be confronted with

mifepristone complications arising from patient selfadministration gone awry—because access to

mifepristone would be subject to in-person physician

oversight and administration. But so long as 2023

REMS governs, telehealth-prescribed mifepristone has

(and will continue) to flow regularly into Louisiana.

Indeed, facilitating that flow is an undeniable purpose

of the 2023 REMS: Empowering out-of-state doctors to

remotely prescribe mifepristone to Louisiana residents

while they are in Louisiana and without regard for

Louisiana law. See pp. 13–14, supra. And when a

Louisiana recipient of such a prescription suffers a

complication in Louisiana, the Louisiana medical

system must treat it. Furthermore, when that

Louisiana patient is enrolled in Medicaid (as many

thousands of Louisianans are) Louisiana must pay (at

least in part) for the ensuing treatment.

It’s “statistically certain” that expenditures of this

sort will happen. All. for Hippocratic Med. v. FDA, 2023

WL 2913725, at *10 (5th Cir. Apr. 12, 2023). Which is

exactly why the Fifth Circuit concluded Louisiana had

suffered the sort of “financial injury” sufficient to

establish standing. App.11a (“A State’s ‘expenditures in

providing emergency medical services’ constitute an

injury for standing purposes.”) (quoting Texas v. United

States, 50 F.4th 498, 518 (5th Cir. 2022)). As the court

of appeals noted, Louisiana specifically identified

thousands of dollars in Medicaid costs arising from

“complications caused by out-of-state mifepristone.”

App.11a. And “[s]uch costs will almost certainly

continue because nearly 1,000 women monthly—many

of whom are on Medicaid—have mifepristone-induced

abortions in Louisiana.” Ibid.

GenBioPro’s rejoinder attempts to cast these

straight-from-the-treasury state Medicaid outlays as

“attenuated,” indirect costs. Emgy. Appl. 19–22. That

characterization leans heavily on United States v.

Texas, 599 U.S. 670 (2023). But Texas doesn’t get

GenBioPro where it wants to go, for two reasons.

First, GenBioPro veers off track with its suggestion

that Texas stands for a generalized rule that “indirect

effects on state revenue or state spending” is never

sufficient to establish standing. See Emgy. Appl. 20.

This overreading cannot be squared with what Texas

actually held. There, the plaintiff States complained

that the federal government was insufficiently zealous

in enforcing immigration law. 599 U.S. at 674. In short,

the States wanted the judiciary to compel the federal

government to “arrest more criminal noncitizens.” Ibid.

(emphasis in original).

This Court described such a request as

“extraordinarily unusual.” Id. at 686. And it was the

nature of the request—not the directness or indirectness

of costs imposed—that was the lynchpin of the

determination that the States lacked standing. As the

Court succinctly explained, the plaintiff States had not

identified “any precedent, history, or tradition of courts

ordering the Executive Branch to change its arrest or

prosecution policies so that the Executive Branch makes

more arrests or initiates more prosecutions.” Id. at 677.

And for good reason: Judicial review of the Executive’s

policy prioritizations of arrests would “run up against”

constitutional limits and raise separation of powers

concerns. Id. at 678. This Court also emphasized that

“courts generally lack meaningful standards for

assessing the propriety of enforcement choices”

regarding which classes of arrest to prioritize. Id. at 679.

Thus, the key takeaway from Texas is not that the

injuries alleged—the increased cost of incarcerations

and additional outlays for social services incurred by

States—were somehow insufficient as injuries to confer

a State Article III standing. Instead, the through-line of

Texas is that the injuries inflicted on the plaintiff States

in that particular case were not “redressable by a court

order.” Id. at 676. See also id. at 678 (“In short, this

Court’s precedents and longstanding historical practice

establish that the States’ suit here is not the kind

redressable by a federal court.”).10 Indeed, as this Court

took pains to elaborate, Texas implicated “only one

discrete aspect of the executive power” and answered

only the “narrow” question of whether “the Federal

Judiciary may in effect order the Executive Branch to

take enforcement actions against violators of federal

10 See also id. at 686 (Gorsuch, J., concurring in the judgment)

(“The problem here is redressability.”); id. at 704 (Barrett, J.,

concurring in the judgment) (“The States failed to show that the

District Court could order effective relief.”).

law.” Id. at 684. Answering that question in the negative

has little to no bearing in other contexts. After all, “the

Federal Judiciary … routinely … decides justiciable

cases involving statutory requirements or prohibitions

on the Executive.” Ibid.

But even if a strained reading of Texas could produce

some sort of attenuation test for evaluating if a cost

incurred was sufficient to convey standing to a State,

Louisiana would pass it. And that is the second reason

GenBioPro’s reliance on Texas is misplaced: The costs

incurred here are not indirect.

GenBioPro’s attenuation test depends heavily on

Texas’s footnote three. There, this Court recognized the

uncontroversial proposition that “in our system of dual

federal and state sovereignty, federal policies frequently

generate indirect effects on state revenues or state

spending.” Id. at 680 n.3. Footnote three then goes on to

say that “when a State asserts … that a federal law has

produced only those kinds of indirect effects, the State’s

claim for standing can become more attenuated.” Ibid.

It is from this snippet—and nothing else—that

GenBioPro’s proffered “direct versus indirect”

conception of Texas flows. See Emgy. Appl. 20.

The problem for GenBioPro is that even under its

own framework, the costs incurred by Louisiana cannot

be meaningfully characterized as “indirect.” In Texas,

the plaintiff States highlighted costs such as the

“millions of dollars” their public-school systems would

incur providing “public education to alien children,”

many of whom only spoke English as a second language.

Texas v. United States, 606 F. Supp. 3d 437, 464 (S.D.

Tex. 2022). See also Texas, 599 U.S. at 674 (referencing

the cost associated with “supply[ing] social services such

as … education to noncitizens who should be (but are

not being) arrested by the Federal Government”). While

the federal policy in question was undoubtedly a but-for

cause of the increase in state expenditures, the

attenuation between cause and effect is obvious.

Changes in federal zeal for immigration enforcement (in

either direction) will undoubtedly have some impact on

State education outlays. But that impact is also

undeniably downstream; it is, at most, a second-order

ripple. States rarely (if ever) try to balance their

education budget by lobbying Congress to ramp up

immigration enforcement.

The same cannot be said of the relationship between

the 2023 REMS and Louisiana’s Medicaid expenditures.

The relationship between the two is first-order—so long

as the 2023 REMS is operative, Louisiana’s Medicaid

expenditures will predictably increase. See App.11a

(recognizing that between 2.9 and 4.6 percent of women

prescribed mifepristone require emergency care and

highlighting FDA’s concession that “emergency room

care is statistically certain in hundreds of thousands of

cases”) (quoting Hippocratic Med., 2023 WL 2913725, at

*10). And the converse is equally true—if the 2023

REMS is set aside, Louisiana’s Medicaid outlays will

necessarily decrease because less mifepristone will flow

into Louisiana from out-of-state. See id. at 10

(recognizing that “a decision in Louisiana’s favor would

redress [the State’s] injur[ies] because mifepristone

could no longer be remotely prescribed to Louisianans”).

Simply put, there is no attenuation. Louisiana has

identified a harm that cannot be characterized as

anything other than direct. Which means, even under

GenBioPro’s tortured understanding of Texas,

Louisiana’s pocketbook injury passes muster.

GenBioPro’s last refuge is this Court’s decision in

FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367

(2024). But, as the court of appeals recognized, “that

case is distinguishable.” App.12a. The key differences

are the identity of the plaintiffs and nature of their

asserted injuries. There, the plaintiffs were “doctors and

medical associations” who did “not prescribe or use

mifepristone.” Hippocratic Med., 602 U.S. at 385.

Recognizing that their moral objection to the

prescription and use of mifepristone by others was

insufficient to establish standing, those plaintiffs

alleged various “downstream” injuries. Id. at 386. Most

pertinent for present purposes, those doctors claimed

that FDA regulatory action making it “easier for doctors

to prescribe and pregnant women to obtain

mifepristone” would inevitably increase the number of

mifepristone-related complications, which in turn would

“divert[] resources and time from other patients” and

that diversion would “increase[] [the] risk” those doctors

would face malpractice liability, which itself would

“increase[] [their] insurance costs.” Id. at 372, 390.

This Court deemed this daisy chain of allegations

insufficient to confer standing. “The causal link between

FDA’s regulatory action[] and [the doctor’s] alleged

injuries” was “too speculative” and “too attenuated.” Id.

at 391. Indeed, the plaintiff doctors had failed to provide

any evidence that mifepristone use had caused them to

be sued or resulted in higher insurance costs. Ibid.

The contrast with this case is stark. Louisiana has

offered discrete and specific examples of Medicaid

expenditures directly attributable to “out-of-state

mifepristone.” App.12a. See also App.30a. Nothing

about such costs—the already incurred and the

statistically certain to occur again—is speculative or

attenuated. Thus, Hippocratic Medicine does not

control.

***

The Amici States, like Louisiana, have enacted laws

reflecting their belief that chemical abortions should (at

most) be extremely rare (if not entirely illegal). The 2023

REMS allows States with different preferences to export

those policies far beyond their borders. In so doing, the

2023 REMS facilitates a coordinated effort to flout and

subvert the Amici States’ laws, striking at the very

heart of their sovereignty. The 2023 REMS also inflicts

discrete, predictable, and undeniably direct economic

costs on Louisiana and the Amici States.

Either basis—sovereign harm or pocketbook

injury—is sufficient to confer Article III standing.

Louisiana has shown both. Because it is not an

“unaffected bystander[]” to the 2023 REMS, Article III

does not “lock” Louisiana “out of court.” Diamond

Alternative Energy, LLC v. EPA, 606 U.S. 100, 125

(2025). And because Louisiana has standing, this Court

will eventually reach the merits of this case and rule in

Louisiana’s favor. Accordingly, GenBioPro’s request to

vacate the stay pending appeal should be denied.

CONCLUSION

For the foregoing reasons, the request to vacate

the Fifth Circuit’s stay of the 2023 REMS should be

denied.

Respectfully submitted,

MICHAEL T. HILGERS

Attorney General of

Nebraska

CODY S. BARNETT

Solicitor General

Counsel of Record

ZACHARY A. VIGLIANCO

Principal Deputy Solicitor

General

Counsel for Amici States

On behalf of:

STEVE MARSHALL

Attorney General of

Alabama

LYNN FITCH

Attorney General of

Mississippi

TIM GRIFFIN

Attorney General of

Arkansas

CATHERINE HANAWAY

Attorney General of

Missouri

JAMES UTHMEIER

Attorney General of

Florida

AUSTIN KNUDSEN

Attorney General of

Montana

CHRIS CARR

Attorney General of

Georgia

DREW WRIGLEY

Attorney General of

North Dakota

RAÚL LABRADOR

Attorney General of

Idaho

GENTNER DRUMMOND

Attorney General of

Oklahoma

THEODORE E. ROKITA

Attorney General of

Indiana

DAVE YOST

Attorney General of

Ohio

BRENNA BIRD

Attorney General of

Iowa

ALAN WILSON

Attorney General of

South Carolina

KRIS KOBACH

Attorney General of

Kansas

MARTY JACKLEY

Attorney General of

South Dakota

RUSSELL COLEMAN

Attorney General of

Kentucky

JONATHAN SKRMETTI

Attorney General of

Tennessee

KEN PAXTON

Attorney General of

Texas

DEREK BROWN

Attorney General of

Utah

JOHN B. MCCUSKEY

Attorney General of

West Virginia

KEITH G. KAUTZ

Attorney General of

Wyoming

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.