The new Trump administration could put a stop to pending litigation on the abortion pill mifepristone and other federal abortion policies through changes at the Department of Health and Human Services, according to a top anti-abortion lawyer involved in several pending cases.
Erin Morrow Hawley, senior counsel for the religious legal advocacy firm Alliance Defending Freedom, told the Washington Examiner in an exclusive interview that she is hopeful that Robert F. Kennedy Jr., President Donald Trump’s nominee for HHS secretary, will swiftly resume the anti-abortion policies of Trump’s first term.
Undoing some of the Biden administration’s actions with respect to the controversial abortion pill mifepristone would end the litigation between anti-abortion advocates and the federal government.
“I think RFK Jr. has been clear in meetings with senators and others that he’s committed to sort of going back to the life protections that the first Trump administration had,” said Hawley.
Kennedy has historically supported abortion rights. He waffled on his abortion stance during his independent presidential run in 2024 but ultimately supported unrestricted abortion access until fetal viability. But anti-abortion advocates have been nevertheless optimistic.
In particular, Hawley said that she is hopeful that Kennedy and Dr. Marty Makary, Trump’s nominee for Food and Drug Administration commissioner, will restore in-person screening requirements for the abortion pill mifepristone, which would in effect prevent the drug from being mailed directly to patients.
Mifepristone has been at the center of abortion litigation since the Dobbs v. Jackson Women’s Health Organization case in June 2022 overturned federal abortion protections under Roe v. Wade.
Under the Biden administration, the FDA in 2021 removed a critical Risk Evaluation and Mitigation Strategies, or REMS, protocol for mifepristone that required in-person doctor visits before a patient could be prescribed the drug. This move was in part to increase access to abortions during the COVID-19 pandemic.
Last year, Hawley argued before the Supreme Court that the FDA’s decision to remove screening requirements for mifepristone leads to a higher rate of complications and harmed doctors with anti-abortion conscience convictions by requiring them to be complicit in an abortion should a patient who obtained mifepristone by mail require emergency care.
Although the Supreme Court dismissed the doctors’ portion of the case on a legal technicality in June, a state-based challenge to the FDA’s deregulation has moved forward.
Last week, federal district judge Matthew Kacsmaryk in Texas said that Kansas, Idaho, and Missouri can move forward with a lawsuit against several states with so-called shield laws that prevent doctors from being prosecuted for prescribing abortion pills to patients in states where the procedure is prohibited or strictly limited.
As of last May, over 40,000 women in states with abortion restrictions accessed abortion medications from providers in abortion-rights states, according to the Society of Family Planning. The possibility of obtaining abortion pills by mail is one of the central reasons why the number of abortions has increased since the fall of Roe.
“It’s really this kind of startling idea that a state would enact laws that would purport to shield its own physicians from doing something illegal in another state,” said Hawley.
Hawley said that the “easiest thing to do is just return to that in-person visit” requirement that was rescinded during the Biden administration.
Even though Kennedy ran on protecting access to abortion, anti-abortion advocates have expressed hope that he may aid them at HHS. Some have suggested that Kennedy’s “Make America Healthy Again” agenda and his skepticism of large pharmaceutical companies could align with the goal of reinstituting greater safety protections for mifepristone.
The FDA’s warning label for mifepristone estimates that as many as 4.6% of women who self-manage their medication abortions will require emergency care to treat severe complications, including hemorrhage and sepsis. Nearly two-thirds of all abortions in the United States involve mifepristone.
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Hawley’s husband, Sen. Josh Hawley (R-MO), has said that Kennedy in preconfirmation hearing meetings has seemed receptive to tightening regulatory protocols on mifepristone as well as following through on other anti-abortion priorities from the first Trump administration.
“Trump should immediately reverse Biden’s radical pro-abortion policies and restore his own pro-life legacy, and I stand ready to join him in that mission,” said Josh Hawley, a new member of the Senate Health, Education, Labor, and Pensions committee.