On Monday, lawyers for the Trump administration asked a Texas federal judge to toss out a lawsuit in which Missouri, Idaho and Kansas seek to restrict access to the abortion drug mifepristone. This welcome news may strike some as a surprise, but supporters of abortion rights shouldn’t celebrate too much. The Department of Justice didn’t say anything about whether it thinks the drug should remain available, there’s no guarantee the right-wing judge assigned to the case will dismiss the lawsuit, and there are many other ways the administration and its allies can still restrict abortion pill access.
The timeline of this case, called Missouri et al. v. FDA, begins in November 2023, when the Republican attorneys general of Missouri, Idaho and Kansas asked to join or “intervene” in an existing lawsuit that anti-abortion doctors filed in Texas against the Food and Drug Administration over mifepristone. Nearly two-thirds of abortions in the U.S. in 2023 were performed with the pills mifepristone and misoprostol. In June 2024, the Supreme Court ruled that the doctors weren’t injured by the FDA’s actions and thus had no legal standing to sue. A unanimous court kicked the case back to Judge Matthew Kacsmaryk to dismiss.
While it’s true that the Trump DOJ sided with the Biden administration, it did so only on the technical details.
That should have been the end of the case for all plaintiffs, but Kacsmaryk, an anti-abortion lawyer and Trump appointee, said in January that the three states could continue the litigation. Unlike the doctors, the states were not challenging the approval of the drug, which dates back to 2000; rather, they wanted the FDA to roll back changes it made since 2016 that allowed mifepristone to be used through 10 weeks of pregnancy, be prescribed to minors, and be prescribed by health care providers via telehealth. (The AGs also argue that the drugs can’t be mailed due to the Comstock Act, an 1873 anti-vice law that conservatives want to resuscitate.) Missouri, Idaho and Kansas claimed these FDA actions undermined their abortion laws and caused economic and political harm due to lower birth rates.
The Biden administration argued in its waning days that Kacsmaryk should dismiss or transfer the AGs’ case, and the Trump DOJ asked for the same here. Both motions to dismiss say the entire case should have been thrown out once the Supreme Court said the original plaintiffs couldn’t sue, and those physicians have since dismissed their claims — so it’s as if the whole thing never existed. Beyond all that, both filings argue, the states of Missouri, Idaho and Kansas have no reason to file this case in Texas. The Trump filing reads: “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.”
While it’s true that the Trump DOJ sided with the Biden administration, it did so only on the technical details of who sued and when, not on the merits of the case. The administration did the bare minimum here, according to Julia Kaye, a senior staff attorney with the ACLU Reproductive Freedom Project. “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 in a statement.
As Politico health care reporter Alice Ollstein noted, the administration’s move could be less about access to mifepristone and more about preserving executive power and agency decisions in the face of a flurry of lawsuits, especially from Democratic-led states. The filing doesn’t mention the word “abortion” once. Earlier this year, Trump’s DOJ also defended a key part of the Affordable Care Act, a law the president tried to repeal in his first term, in part by arguing that the Health and Human Services Department has broad latitude to supervise a task force that makes recommendations for services insurers must cover.
But it’s now up to Kacsmaryk to decide to either accede to the Justice Department’s request or to deny it. As Health Affairs explains, if the judge denies it and pushes the case forward, the Trump administration would then need to decide whether to defend the FDA’s actions on the merits. Kaye said decades of evidence show that the drug is safe and effective, and abandoning that history would be dangerous. “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,” she said in a statement.
Conservatives’ threats to mifepristone aren’t limited to the courts.
Conservatives’ threats to mifepristone aren’t limited to the courts. Trump told Time magazine in December it would be “highly unlikely” that his administration would restrict access to abortion medication, but refused to be definitive. “We’re looking at everything, but highly unlikely,” he said. “I guess I could say probably as close to ruling it out as possible, but I don’t want to.” He also told NBC News the same month he probably wouldn’t take action, but that “things change.” Then, during Robert F. Kennedy Jr.’s January confirmation hearing to become secretary of health and human services, he said Trump asked him to study the safety of the drug.
FDA Commissioner Marty Makary said in late April that he had “no plans” to restrict mifepristone, but added that “if the data suggests something or tells us that there’s a real signal, we can’t promise we’re not going to act on that data.” In recent days, conservatives have latched on to what they claim is data, but what is really a methodologically flawed paper from a right-wing organization. Sen. Josh Hawley asked Makary to slash access to mifepristone based on the paper from the Ethics and Public Policy Center, which overestimates complications and is not peer-reviewed. Hawley requested a response by May 15.
The administration could also drastically limit abortion pill access by having Attorney General Pam Bondi rescind Biden administration guidance that said mailing abortion pills doesn’t violate the Comstock Act. Ominously, Bondi told a Louisiana district attorney that she “would love to work with [him]” on the prosecution of a New York doctor who allegedly prescribed pills to a Louisiana woman under a so-called “shield law.”
It remains to be seen if Trump will allow one of his Cabinet picks to restrict access to abortion pills, or whether he’d prefer to let judges like Kacsmaryk take the political heat instead. But one thing is for sure: Americans’ continued access to mifepristone is not guaranteed.