For the anti-abortion movement, overturning Roe v. Wade was never meant to be the end of the road. As destructive as the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization was—it reversed Roe and permitted states to ban abortion—it did not eliminate abortion. In fact, since the decision, more people have had abortions, thanks to the widespread availability of medication abortion dispensed remotely. “The fight for life is far from over,” proclaimed the state of Louisiana in the opening line of its latest legal challenge to abortion access, which the state argued before a Fifth Circuit Court of Appeals panel on Wednesday. For Louisiana, it is not enough to have banned abortion within its borders; it wants to extend that prohibition to reach those outside the state. Now it’s claiming that outside forces have undermined the state’s sovereignty—simply by making it possible for Louisianans to continue to access abortion.
In the case before the Fifth Circuit on Wednesday, Louisiana blamed the U.S. Food and Drug Administration for abortions had by Louisianans, and asked the court to stop the agency from allowing them to continue. Representing the FDA, the Department of Justice argued that Louisiana’s case was flawed, not because it was baseless, but because it was going after the wrong culprit. According to the DOJ, Louisiana should sue other states, from which abortion providers serve Louisiana patients. The Justice Department did not defend the FDA, which it ostensibly represents. It also didn’t object to Louisiana’s dangerous claim that its state law enforcement powers had been impeded by those outside its borders.
As advocates watch this fight and attempt to forecast what’s next, the Justice Department’s inaction can read as both an admission and a promise. The DOJ is admitting that this courtroom battle over mifepristone is not about whether it is safe, as has been the anti-abortion movement’s argument since Dobbs. It’s not even really about the FDA. And it’s implicitly promising that the fight over guidelines for mifepristone is merely a step toward a national abortion ban. On the surface, DOJ and Louisiana were at odds, but they appear to be in agreement when it comes to the ultimate goal of extending existing state abortion bans to all 50 states. The Justice Department used its time before the Fifth Circuit this week to demonstrate that agreement.
Louisiana’s case is just one of many to take aim at medication abortion following the demise of Roe. Some have ended in the early stages, involving debate over whether the cases can even be brought at all. In one, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, a hastily assembled group of anti-abortion medical providers who did not provide abortion sued the agency, but the Supreme Court ruled that the plaintiffs lacked standing to challenge the FDA. Thus kicked off a wave of new cases meant essentially to cast a plaintiff that could pass muster.
The Louisiana case is also in those early stages. It has had one qualified but temporary win for the state so far. Earlier this year, a different Fifth Circuit panel issued an order that suspended the FDA guidelines permitting mifepristone access by telehealth, until the ultimate outcome in the case. Nearly immediately, two of the drug’s manufacturers asked the Supreme Court to stay that decision. The FDA, glaringly, did not ask for a stay. In May, the Supreme Court lifted the lower court’s stay, and mifepristone guidelines returned to the status quo.
As Louisiana Solicitor General Ben Aguiñaga again laid out the state’s case this week, arguing that it did have standing to sue the FDA, he didn’t have to emphasize his indignation about the fact that people are still having abortions in Louisiana despite the state’s ban. But he did, repeatedly claiming that “it happens a thousand times a month” and that the FDA allowed it to happen simply by having made mifepristone available by mail without an in-person appointment. Judge Stephen Higginson, who was appointed to the Fifth Circuit by President Obama, did not seem impressed with this reasoning. To him, he said, it sounded like the state was “really just asking the federal government to help you impose your criminal laws.” The case wasn’t about the FDA or its guidelines, in other words; it was about finding a way to enforce Louisiana’s abortion ban, using the power of the federal government.
The anti-abortion movement’s legal strategy of going after the FDA is not new. But it has become more complicated now that the Justice Department’s posture toward the agency and its authority is changing dramatically, Kirsten Moore told me. Moore is the director of the EMAA Project, which works to expand access to medication abortion. The Trump regime is responsible for the sea change. “We saw, in the prior administration, DOJ really robustly defending FDA’s authority, and their willingness to follow the process Congress had laid out for them,” she explained. That’s unsurprising; the FDA’s authority, delegated by Congress, is well established. “This administration,” however, “just isn’t doing that.”
The sea change was evident in the performance of the Department of Justice attorney, Daniel Winik. At oral arguments, he repeatedly refused to speak to the FDA’s mifepristone guidelines. He would not address anything the judges asked as it related to medication abortion. “We have not taken a position,” he said, on any of the “merits issues in the case.” All there was to do, he said, was to tell the court that Louisiana lacked standing in the case. “I don’t find that very satisfactory,” replied Judge Higginson. “I mean, this is your regulation.”
Was Winik throwing the FDA under the bus? “It’s beyond unusual for the Department of Justice to say, ‘We’re not even going to touch the merits of something which the DOJ has defended before,’” Katie Keith, founding director of the Center for Health Policy and the Law at the O’Neill Institute at Georgetown Law, told me this week after oral arguments. “It’s a wild position to be taking.” Keith pointed out an earlier DOJ filing in the case, which seemed to undermine even the FDA’s own record on mifepristone. Among other things, it stated, “Given this widespread debate over the safety of mifepristone, FDA has concluded that the best path forward is for the agency to reconsider the restrictions on mifepristone based on all the evidence before the agency.” Of the stance DOJ is taking in this case, she said, “I don’t know any other way to read this position other than as a political position.”
The closest that Winik got to a defense of the FDA was to say that the agency was the wrong target. Despite what Louisiana had argued, he said, FDA guidelines on mifepristone had “nothing to do with the hindrance to the enforceability of state law.” Louisiana had previously attempted to hold medication abortion prescribers responsible in court, he went on. “You brought these prosecutions against doctors in New York and California, why can’t you pursue them?” It’s not the FDA guidelines, he said. “The answer is the shield laws enacted by other states.”
Shield laws are meant as “safeguards,” as Dr. Chelsea Daniels, a member of the Reproductive Freedom Taskforce of the Committee to Protect Health Care, told me on Wednesday. Daniels is also a practicing OB/GYN and an abortion provider who has worked in Florida and California. These laws allow providers to offer care to patients in every state, even those with abortion bans, by protecting them from civil suits brought by ban states. “The sheer fact that shield laws need to exist,” Dr. Daniels said, indicates how far anti-abortion lawmakers are willing to go in order to stop providers in other states. “Anti-abortion advocates talk about how they want to bring this back to the states,” she said. “The way that they then subsequently attack shield laws, to go completely out of their way to attack other states, just speaks to how phony their intentions are, and how transparent their goals are.”
While the Justice Department attorney at the Fifth Circuit may have been in court to represent the FDA, he was also representing the administration’s anti-abortion posture: to ensure that “the Dobbs decision becomes permanent in every single state,” as Attorney General Todd Blanche promised at an event put on by the White House Faith Office in August.
The Justice Department’s defense, therefore, was in what was not said. Its attorney did not contend that Louisiana was wrong on the merits of its case in any way. He didn’t say it was wrong about the harms of mifepristone; he didn’t say it hadn’t been harmed by those who allowed their residents to access abortion; he did not dispute Louisiana’s specious reasoning that one state has the power to enforce its abortion ban on those outside the state. In fact, in suggesting other states as the culprit, the Justice Department seemed to endorse this argument.
A decision in this case is yet to come; whatever the ruling is, it will certainly end up in front of the Supreme Court. But the confusion over mifepristone access, caused by the legal process, has already seeped out. “It’s rare that I have a patient come in saying to me, have you been following the Louisiana v. FDA hearings?” Dr. Daniels shared with me. “I mean, every now and then. But I think, more generally, it’s in the ground water. It’s in the ground water for all of us.” The chaos whipped up in the courts stands in stark contrast to the quotidian simplicity of offering routine abortion care. “The list of questions I ask people when I’m about to dispense mifepristone, to make sure that they’re good candidates,” Dr. Daniels said, “is a much shorter list than the list of questions I ask people when I am about to dispense ibuprofen or Advil.”
