Dem
47
GOP
53
Readers may recall that following the Supreme Court's decision in Dobbs in 2022, which overturned Roe v. Wade and struck down constitutional protections for abortion rights, anti-abortion groups turned their attention to their next target, mifepristone, which is used for medication abortions. While ostensibly abortion was now "left to the states" and the public has spoken clearly in favor of abortion rights any time they have appeared on the ballot since Dobbs, curtailing access to abortion is a way to subvert those pesky election results. Indeed, medication abortion has proven to be much too easily accessible, as far as these groups are concerned. So, they put together a lawsuit to challenge the FDA's approval of mifepristone and the 2016 modifications to its use restrictions, which allowed it to be prescribed via telehealth and expanded the point in pregnancy at which it can be used. But before they filed the suit, they went shopping for a judge with a proven track record of anti-abortion positions for whom the law would not be an impediment. As luck would have it, in the Amarillo division of the Northern District of Texas, there is only one judge, and he just happens to be the zealot they were looking for. That's the infamous Judge Matthew Kacsmaryk, whose name has shown up on this site once or twice in the past couple of years. He delivered more than the plaintiffs could have hoped for: He not only wiped out the 2016 modifications, he ordered the FDA to rescind approval of mifepristone altogether. The Supreme Court reversed his order and dismissed the case, holding that the plaintiffs lacked standing to bring the suit (but without ruling on the merits of the case).
If you thought this was not the end of this story, you were right. Three states, Missouri, Idaho and Kansas, intervened. After the Supreme Court's decision, they sought leave of court to file an amended complaint substituting themselves as the plaintiffs. In January of this year, Kacsmaryk—surprise, surprise!—granted their request. On January 18, in one of its last acts, the Biden administration filed a motion to dismiss the complaint on standing and venue grounds, arguing that the three states have no connection to Texas, that they have suffered no injury to satisfy standing requirements, and that the claims are untimely. The plaintiffs opposed the motion and, earlier this week, the Trump administration filed its reply. The reply refutes the opposition and reasserts the arguments in the motion, which is the exact purpose of a reply brief. Nonetheless, this was BIG news, with many outlets (for example, Politico) reporting that Team Trump was taking the baton from Team Biden. It's sad that such a straightforward, consistent and normal court filing is covered in the media so breathlessly. That said, given the chaos at the Department of Justice, it does seem unusual in its regular order and banality.
What is most interesting is that both the original motion and the reply were filed by the same attorneys from the Consumer Protection Branch and the Federal Programs Branch of the Civil Division of the DoJ. So, there are some career attorneys who have thus far survived the transition to the Trump administration. And it shows in the professionalism of this filing. But note that these are just jurisdictional arguments to get the case thrown out at an early stage. These are not arguments on the merits. And Kacsmaryk may remain true to form and deny the motion, allowing these three states to proceed in his court. Under those circumstances, will the Trump DoJ appeal his decision? Probably not. So, they lose very little by sticking with the original motion. The upshot is that we really won't know the administration's position on mifepristone unless, and until, this case proceeds beyond arguments about standing and venue, and moves into arguments about the substance of the claims.
It is not impossible that the White House will ultimately choose to take the pro-mifepristone side. Trump has been willing to throw multiple bones to the anti-choice folks, but banning mifepristone would be pretty radical, and would be a bridge too far for a pretty sizable majority of Americans. The administration might not want to be on the receiving end of that wrath, and might well tell the anti-choice elements of the base "We backed strong limits on surgical abortions, but that's as far as we are going to go." (L)