A MAGA Judge May Soon Make This Abortion-Pill Case Even Scarier

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Florida and Texas made a quiet move last week that could have huge implications nationwide: Their attorneys general asked to join a federal lawsuit against the Food and Drug Administration that seeks to drastically roll back access to the main abortion drug, mifepristone. The states argue that the medication's FDA approval should be revoked or, failing that, that telemedicine prescriptions should be once again banned. Telehealth has allowed thousands of people to get abortion pills in states where the procedure is prohibited.

The judge with whom they filed the request is Matthew Kacsmaryk, a Donald Trump appointee in Amarillo, Texas, notorious for his 2023 ruling purporting to rescind federal approval of mifepristone. That was in an earlier iteration of the abortion pill case, which is still stalking abortion access like a zombie.

Last we heard, the Trump administration said that three state AGs , none of whom are from Texas, should not be able to continue a lawsuit that was originally filed by a group of anti-abortion doctors. The Supreme Court ruled unanimously last June that those doctors weren't injured by the FDA's actions and lacked standing to sue the agency. That never meant that the legal threat to mifepristone was gone , of course—just that the physicians weren't the right plaintiffs. And now Texas especially appears to think that it could present a better vehicle for the case. If Kacsmaryk allows the state to join the litigation, the Justice Department may no longer argue that the suit should be dismissed, and the case could once again return to the Supreme Court.

This is all, frankly, a scarier version of the lawsuit filed by the doctors in 2022 because Texas might actually have a shot at getting the high court to say it has standing to sue. Its claims are at least more plausible than the two previous tries because Amarillo is a valid place for Texas to sue and because Texas lawyers have been making a lot of noise about mifepristone by mail harming the state and its residents .

The state has been amassing legal actions against abortion providers and rights groups, said Rachel Rebouché, the dean of Temple University Beasley School of Law, who specializes in reproductive health law. “Texas intervening is an argument that gets closer to demonstrating harm because Texas has sued [a physician] , and there are litigants from Texas suing people in other states,” she said.

The original case concerned mifepristone's harms to anti-abortion doctors and women's safety—neither of which were based in evidence, not that that would stop conservative plaintiffs. Then the first set of AGs claimed that telemedicine abortions rendered them unable to enforce their laws, arguing that the FDA had created an interstate conflict. Texas AG Ken Paxton is taking elements of both complaints and packaging them in a way that seems designed to force action, Rebouché said.

Harm is something “people are going to disagree about,” she said. “Conflict between New York and Texas—whose law applies and how? That's a Supreme Court [problem], and that's a federal administration problem.” These arguments are an “on-ramp” for the court or the Trump administration to weigh in on mifepristone regulations, blue state protections, or both.

Abortion pills are an existential threat to the anti-abortion movement because people in banned states can access them somewhat easily via the mail and end their pregnancies in private. Conservatives knew that this would be the case before the Dobbs decision , which overturned Roe v. Wade , but the post- Dobbs statistics may have surprised even them. Nearly two-thirds of abortions in the US in 2023 were performed with pills, for which the typical regimen is mifepristone followed by misoprostol. According to recent data from the Society of Family Planning, 1 in 4 abortions in the US by the end of 2024 were done with pills via telehealth. In the quarter before the Dobbs decision, that figure was 1 in 20.

Several Democratic-controlled states have passed shield laws to protect health care workers from criminal and civil actions when they treat patients across state lines. The SFP estimates that under these laws, doctors prescribed abortion pills to an average of 12,330 people a month by the end of 2024. A single abortion-pill service, Aid Access, said that between July 2023 and August 2024, it prescribed nearly 100,000 sets of pills to people who lived in states that have banned the procedure or have banned telemedicine.

Texas and Florida cite the SFP report in their legal filings to argue that states like them can't enforce their abortion bans due to the FDA's allowing of telemedicine prescriptions since 2021. The filings also cite junk-science findings from the far-right Ethics and Public Policy Center that conservatives are rallying around to try to get the FDA to restrict the drug. This data—the SFP's legitimate, the EPPC's not—did not exist when the doctors first filed their case in late 2022.

It's worth a recitation of the original case's backstory at this point, because this litigation has become a house of cards, with new, precarious levels being added all the time. Less than six months after Dobbs , a group of conservative doctors and dentists sued the FDA, represented by the Christian law firm Alliance Defending Freedom , seeking to rescind the approval of mifepristone. The doctors were part of the Alliance for Hippocratic Medicine, a shadowy group incorporated in Amarillo a few months earlier, and they claimed that the mere existence of the abortion pill meant that in rare cases when the pills caused too much bleeding or didn't work, they would have to treat patients experiencing complications—and possibly perform abortions—over their religious objections. Although the doctors couldn't prove that any of this had happened, Kacsmaryk tried to revoke the drug's approval in April 2023.

Likely sensing that the doctors would lose, the AGs of Missouri, Idaho, and Kansas asked to join the lawsuit in November 2023, a request Kacsmaryk granted in early 2024. The states weren't asking the FDA to rescind the drug's approval; rather, they sought to force the agency to roll back changes made since 2016 that allowed telehealth prescriptions of mifepristone and permitted the drug to be used through 10 weeks of pregnancy (up from seven) and be prescribed to minors. The AGs also argued that the drugs couldn't be mailed because of the Comstock Act , an 1873 anti-obscenity law that conservatives wanted to resuscitate to restrict abortion. A follow from Missouri, Idaho, and Kansas claimed that these FDA actions undermined the states' abortion laws and caused economic and political harm due to lower teen birth rates .

After ping-ponging through the appeals process , the case was finally heard at the Supreme Court in March 2024. (Perhaps unsurprisingly, Justices Samuel Alito and Clarence Thomas seemed open to the Comstock idea during oral arguments.) Then, in June 2024, the justices said that the doctors couldn't proceed with the lawsuit, meaning that the case should have been dismissed after the court kicked it back to Kacsmaryk. Plus, the original plaintiff physicians have since dismissed their claims —so it's as if the whole case never existed. But in January, during the final days of the Biden administration, Kacsmaryk ruled that the three AGs could continue the litigation .

In May, Trump's DOJ asked Kacsmaryk to drop the case because Missouri et al. had no connection to Texas. That struck some abortion rights supporters as good news, but the department said nothing about the underlying merits of challenging FDA regulations. “The States cannot keep alive a lawsuit in which the original plaintiffs were held to lack standing, those plaintiffs have now voluntarily dismissed their claims, and the States' own claims have no connection to this District,” the government attorneys wrote .

The DOJ said that Kacsmaryk had to dismiss or transfer the case, but he did neither, giving abortion opponents an opening to try to revive the case. And in recent months, Texas has been taking steps that appear to be those of a state trying to establish that it has standing to sue the FDA over mifepristone, Rebouché said. Paxton sued a New York doctor in December for mailing pills to a Texan; he can't get the civil judgment enforced and is now suing a New York county clerk. Two days before filing in Kacsmaryk's courtroom, Paxton sent cease-and-desist letters to the informational site Plan C and two telehealth abortion-pill providers, threatening to sue them if they didn't stop “ facilitating ” abortions in the state. Plus, there are two federal wrongful-death lawsuits filed by Texans against abortion-pill providers—the lawyer in both cases is former Texas Solicitor General Jonathan Mitchell.

Conservatives likely knew that the doctors' original case would get punted, so it's possible they've been working together to create something that will stick. “I think everything in anticipation of that [June 2024] ruling, and since, has been in part with an eye to how to make those arguments legitimate, and how to do it on a multipronged front,” Rebouché said.

Part of that effort may well include the EPPC “research” published at the end of April, which claims that mifepristone is far less safe than the FDA suggests. The methodologically flawed paper was not published in a peer-reviewed journal and overestimates complications of the drug but has since been cited in congressional letters to the agency, cease-and-desist letters from both Paxton and Arkansas AG Tim Griffin , and, now, this motion for Florida and Texas to join the case.