Page:Washington v. U.S. Food and Drug Administration (E.D. Wash. 2023).pdf/23

 Plaintiffs assert that the Mifepristone REMS Program imposes costs that are not compensable where the restriction of access to mifepristone causes patients to miss the window for medication abortion, leaving patients with procedural abortion or carrying a pregnancy to term, options that impose higher costs on Plaintiffs’ state-run health care programs. ECF No. 3 at 29–30. Plaintiffs also contend the ongoing implementation of the 2023 REMS modifications impose costs on Plaintiffs. Id. at 33. Economic costs that may not be recovered through the ordinary course of litigation satisfy the irreparable harm standard. Idaho v. Coeur d’Alene Tribe, 794 F.3d 1039, 1046 (9th Cir. 2015); see also California v. U.S. Health & Human Servs., 390 F. Supp. 3d 1061, 1065 (N.D. Cal. 2019). The Court finds that the alleged unrecoverable economic costs in this case is sufficient to demonstrate irreparable harm. The Court need not reach Plaintiffs’ other bases of irreparable harm.

Defendants argue Plaintiffs fail to show irreparable harm on two grounds: (1) the 2023 REMS loosen restrictions and (2) Plaintiffs delayed in filing this action. ECF No. 51 at 30. First, even taking Defendants’ argument that the “net effect” of the 2023 REMS lessens restrictions, Plaintiffs continue to assert that no restrictions are necessary and the 2023 REMS impose new restrictions that Plaintiffs are still working to implement. See ECF No. 3 at 33. Second, as to any delay, Plaintiffs contend they did not know FDA would approve the 2023 REMS