Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.
From the start of this second term, it has been hard to predict how far the Trump administration will go in restricting abortion. There may be a temptation to take a clue from Monday’s surprise decision by the Department of Justice to maintain its Biden-era position opposing a lawsuit that seeks to ban the abortion pill. Don’t be fooled, though: Nothing has fundamentally changed. The case involves an ongoing war against mifepristone, a pill used in more than half of all abortions, that started in 2022. Last year, the Supreme Court held that the plaintiffs in the original case didn’t have standing to sue. That didn’t stop three conservative attorneys general from filing, in November, what they called an amended complaint in the same case, before the same Texas judge, Matthew Kacsmaryk. Ever since the 2024 presidential election, there were questions about what Donald Trump would do with the case. Would his administration defend mifepristone, or would the president give abortion opponents at least part of what they want?
On Monday, after months of delay, the administration finally filed its response in the case, Missouri v. Food and Drug Administration. Surprisingly, the brief asked that the case filed by the anti-abortion plaintiffs be dismissed. But it’s a mistake to read this as a sign that Trump will necessarily keep his word and let the states set abortion policy. Instead, the most likely scenario is that Trump doesn’t want to be bullied into taking a position when he isn’t ready, and that when it comes to limiting access to mifepristone, he’d be happier letting the courts take the lead.
The war against mifepristone began as soon as Roe v. Wade was gone. Suing on behalf of a group of doctors called the Alliance for Hippocratic Medicine, the Alliance Defending Freedom, a leading group in the conservative Christian legal movement, filed a suit arguing that the FDA had lacked the authority to approve mifepristone in 2000. The group also claimed that the FDA couldn’t have approved telehealth access to the drug because the Comstock Act, a 19th-century obscenity law, made it a crime to mail any abortion-related drug or paraphernalia.
The problem was, these plaintiffs didn’t have standing. How bad was their standing argument? So bad that they lost every single conservative justice on the Supreme Court, even the author of the Dobbs decision, Justice Samuel Alito. That didn’t stop the attorneys general of Missouri, Idaho, and Kansas from trying to keep the case alive. The AGs, apparently worried about the plaintiffs’ disastrous standing argument, had already intervened in the case; later, they tried to insert themselves as plaintiffs and focused more on the Comstock Act in their own court filings.
Ever since Trump has come back into office, his position on the case has been a source of mystery. On the campaign trail, Trump had vowed to let the states set their own abortion policy. Limiting access to mifepristone, or transforming the Comstock Act into a de facto ban, hardly lets the states go their own way. On the other hand, Trump has forged strong alliances with anti-abortion politicians and voters, who still expect him to take action on mifepristone, especially after multiple Trump nominees, including Secretary of Health and Human Services Robert F. Kennedy Jr. and FDA Commissioner Martin Makary, vowed to study the drug’s safety—code, anti-abortion leaders thought, for being open to new restrictions.
The administration had already asked for more time to clarify its position on mifepristone-related cases. And that time apparently bought Trump the opportunity to decide he still isn’t ready to deal with the issue. In a brief filed Monday, the administration argued that the attorneys general had filed their suit in the wrong venue: Assuming the AGs could point to some injuries in their home states, what did that have to do with Amarillo, Texas? More ambitiously, the Trump administration argued that the attorneys general don’t have standing to sue, period. Their injuries were speculative, or disconnected from FDA policy, or both.
These arguments make sense. Beyond the obvious fact that Kacsmaryk has the most reliable track record of siding with anti-abortion plaintiffs, there was never a plausible argument for these plaintiffs to be in Amarillo. And the states’ standing arguments aren’t convincing either—the most ridiculous involved the claim that the FDA was harming the states by lowering the rate of teen pregnancy.
Missouri, Kansas, and Idaho may be making ridiculous assertions. But what does it mean that the Trump administration is pointing this out? Is it a sign that Trump will defend the status quo on mifepristone and keep his promise to leave the states alone when it comes to abortion?
Probably not. One of the most striking features of the brief is that it says nothing about the merits of the states’ arguments about mifepristone and the Comstock Act. Compare this with similar filings from the Biden administration, which went into painstaking detail about the Comstock Act and the FDA’s authority.
None of this is missing from the Trump administration’s brief by accident. Trump wants to leave himself room to maneuver on mifepristone. His problem with the attorneys general isn’t necessarily that the two groups of Republicans are on different sides when it comes to the drug. It may simply be that Trump wants to control if, or when, he does something on the issue. He doesn’t want to be pushed around by the anti-abortion movement or its allies in the states.
There’s another possibility too—one that Trump could have learned from the 2024 election. During his first term, the anti-abortion movement scored its biggest win in more than half a century, when the president was able to reshape the Supreme Court with three new appointments who would eventually be critical to overturning Roe v. Wade. And yet that fact—and the tremendous unpopularity of the court’s decision in Dobbs v. Jackson Women’s Health Organization—didn’t stop Trump from winning a second term. It seemed he’d found a perfect formula: shifting blame to the courts, then claiming he wouldn’t change the status quo on his own. Cases about mifepristone are already in the pipeline—the Missouri suit is just one example. If passing the buck to SCOTUS worked once before, Trump might be hoping he can do the same with abortion pills.
We don’t know what will happen in this case, or others on mifepristone. The bottom line is that Trump isn’t defending abortion pills. He’s defending his own power to control what happens to them. And as far as that goes, we all still have to wait and see.
