President Donald Trump’s Department of Justice sided with the Biden administration’s defense of mifepristone on Monday in an ongoing federal lawsuit over the abortion pill. It’s an unexpected move for the anti-abortion administration, and experts warned HuffPost that it’s actually a calculated political move to delay the war on abortion care.
The suit, State of Missouri v. U.S. Food and Drug Administration, is an amended complaint to last year’s Alliance for Hippocratic Medicine v. FDA, which anti-abortion advocates took all the way to the Supreme Court in their quest to challenge the FDA’s mifepristone regulations. State attorneys general in Missouri, Idaho and Kansas essentially revived the suit, despite the Supreme Court rejecting the previous plaintiffs on a lack of legal standing.
President Joe Biden’s administration continued to defend the FDA beyond last summer’s oral arguments, filing a motion to dismiss the lawsuit in January that highlighted several of its fatal flaws. Monday was the deadline for a reply brief in support of the motion from the federal government.
Normally, this wouldn’t be newsworthy. But because the Trump administration is now in power, and the suit has effectively changed hands, the reply brief gives us insight into how the administration plans to move forward in its ongoing attacks on reproductive health care.
Even though the Trump administration is ideologically aligned with the state attorneys general from Missouri, Idaho and Kansas, Trump’s brief supports Biden’s original motion to dismiss by reinforcing the same technical legal defenses. The Trump administration is facing a litany of other lawsuits from Democratic-led states and likely needs to make the same technical legal arguments Biden did in the mifepristone case in order to stay consistent with the kinds of arguments they need to make in other cases, Julia Kaye, senior staff attorney with the American Civil Liberties Union’s Reproductive Freedom Project, told HuffPost.
“The Trump Administration should not get a gold star for continuing to highlight the glaring legal flaws in Missouri’s case — they could not do otherwise with a straight face,” Kaye said. (Story continues below.)
The Trump administration essentially underlined the flaws that Biden’s DOJ pointed out in the original motion to dismiss, including that the states bringing the suit have no legal standing to challenge the FDA’s mifepristone regulations. They also argued that the three states have no reason to litigate this case in Texas.
By piggybacking onto the original lawsuit, the Republican state attorneys general were able to file their complaint in Judge Matthew Kacsmaryk’s Texas courtroom. Kacsmaryk, a far-right Trump appointee infamous for his anti-abortion views, is the federal judge who ruled last year that the FDA unlawfully approved mifepristone when it first went to market over two decades ago.
“There is obviously no reason for Missouri, Iowa and Kansas, to be suing in Texas other than wanting their case decided by the same Trump-appointed judge who already tried to take mifepristone off the market nationwide,” Kaye said. “Missouri does not get to litigate this case in Texas just because they want to guarantee that it is heard by a judge who opposes abortion.”
The Trump administration essentially kicked the can down the road in the ongoing war over the abortion pill.
“The DOJ’s brief didn’t address the merits of the case, it merely agreed that the plaintiff’s unprecedented arguments didn’t hold standing,” Kirsten Moore, director of the Expanding Medication Abortion Access Project, told HuffPost.
But his administration and fellow anti-abortion Republicans are still laying the groundwork to restrict the pill — whether through misinformation on mifepristone’s safety record or enacting a federal abortion ban using the Comstock Act.
Under the Biden administration, the FDA lifted its in-person dispensing requirement for mifepristone, allowing people to access abortion pills through the mail. Telehealth abortion care now accounts for 20% of all abortion care since the Supreme Court repealed Roe v. Wade.
The FDA approved mifepristone in 2000, and the medication has since been used by over 6 million people in the U.S., according to the agency. Major medical groups have repeatedly said mifepristone is safe, pointing to more than 100 studies that have corroborated its safety and effectiveness.
“Decades of scientific evidence and the nation’s leading medical authorities agree that mifepristone is safe, effective and essential to reproductive health care,” Kaye said. “If, moving forward, the Trump administration stops defending the FDA’s evidence-based decisions on mifepristone or orders the FDA to reconsider its regulations, that would tank the FDA’s credibility and betray President Trump’s campaign promise not to further interfere with abortion access.”