Federal judge revives legal effort to limit access to abortion pill

A decision by a federal judge last week is reviving the effort to limit access to mifepristone, opening a fresh round of litigation over a widely used drug that has grown in importance since the Supreme Court eliminated the constitutional right to abortion nearly three years ago.

U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas ruled Thursday that three states — Missouri, Kansas and Idaho — can move forward with a lawsuit that seeks to change the way the drug is prescribed and used. Kacsmaryk, who was nominated by President Donald Trump in 2019, has a history of strong anti-abortion views, The Washington Post reported in 2023.

Kacsmaryk’s order resurrects an old front in the battle over reproductive rights. After the Supreme Court’s 2022 decision to overturn Roe v. Wade, abortion foes launched efforts to restrict access to mifepristone, which was first approved for use in the United States in 2000 as part of a two-drug regimen used in more than half of U.S. abortions.

The first legal swipe at the drug, brought by a coalition of anti-abortion doctors, failed at the Supreme Court last year after the justices ruled that the doctors didn’t have legal standing to bring the case because they do not prescribe or use mifepristone.

But the high court’s ruling left open the possibility that state governments would have standing, paving the way for Missouri, Kansas and Idaho to revive the challenge. The states filed a revised lawsuit late last year, removing the coalition from the complaint.

The Food and Drug Administration and drug manufacturer Danco Laboratories — the defendants in the case — said the lawsuit should be dismissed for improper venue and transferred to Missouri, Idaho, Kansas, Maryland or D.C. They said the plaintiffs have no connection to Texas.

But Kacsmaryk’s Thursday order green-lit the states’ amended complaint against the FDA, opting instead to punt the fight over venue selection to a later date.

“Venue remains disputed here and should be properly dealt with at a phase where each party may fully argue the issue,” Kacsmaryk wrote.

Now Kacsmaryk, whose 2023 ruling to block access to mifepristone led to last year’s Supreme Court case, will once again have the opportunity to change the abortion landscape in the United States.

Greer Donley, a law professor at the University of Pittsburgh, cautioned that the lawsuit is still in its early stages and that the plaintiffs will have to overcome the venue hurdle. She also said it’s not unlike Kacsmaryk to entertain the case.

“It’s consistent with what we’ve seen from Kacsmaryk,” said Donley, who studies abortion and the law. “He is incredibly sympathetic toward the anti-abortion plaintiffs, and is willing to kind of even engage in pretty off-the-wall types of arguments.”

Donley said the states could have filed a new lawsuit in a different courthouse, as is customary, but chose not to. “They’re not doing that for one obvious reason that everybody knows, which is that they want Kacsmaryk,” she said. “They want that anti-abortion judge to hear their case and to kind of give them a sympathetic ear.”

The initial challenge to mifepristone was brought in November 2022 by the Alliance for Hippocratic Medicine, a coalition of anti-abortion doctors and others. The group said the FDA did not sufficiently consider safety concerns when it first approved the drug more than 20 years ago or when it removed some restrictions in 2016, allowing the medication to be used later in pregnancy, for medical providers other than doctors to prescribe it, and for it to be sent directly to patients by mail.

Kacsmaryk sided with the challengers and suspended the FDA’s approval of the drug. A three-judge panel on the New Orleans-based U.S. Court of Appeals for the 5th Circuit scaled back Kacsmaryk’s ruling, restricting access to the drug but reinstating FDA approval.

In 2024, the Supreme Court reversed the rest of the ruling and maintained broad access to the abortion pill, saying the anti-abortion coalition didn’t have legal standing to bring the case.

Missouri, Kansas and Idaho have argued that they have standing because of added public insurance costs for emergency medical care and mental health support related to complications from abortion pills. Missouri and Idaho officials say they have a separate interest in enforcing the state’s strict bans on abortion, which they say are undermined by the dispensing of abortion pills through the mail, sent from states where the procedure is legal.

The states want the FDA to reinstate its restrictions on the medication, requiring mifepristone to be dispensed only in person and be used within the first seven weeks of pregnancy instead of the first 10 weeks, among other actions, according to court documents.

Donley said the plaintiffs in the new case still face hurdles.

“A Supreme Court that’s very conservative, one of the most conservative Supreme Courts we have had, unanimously said that the plaintiffs in the prior lawsuit did not have standing,” she said. “Have they really shown that they’re that much different than the other ones? I think that most people would say absolutely not. Would Kacsmaryk say that? I don’t know.”