Notorious Texas Judge Brings Abortion Pill Lawsuit Back From the Dead

Part of the states’ argument for why increased access to mifepristone has harmed them—and why they should have standing to sue—is that telemedicine prescriptions “undermine state abortion laws and frustrate state law enforcement.” They specifically cite shield laws that permit doctors in protective states to prescribe and send pills to people in states with bans and the complaint includes photos of people preparing packages. (Separately, Texas is suing a New York doctor who mailed pills into the state under a shield law.)

But another part of the complaint is downright creepy pronatalist stuff. They claim that abortion pills are lowering teen birth rates in their states, which could reduce their population and lead to losing seats in Congress and federal funds.

From page 190 of the complaint:

This study thus suggests that remote dispensing of abortion drugs by mail, common carrier, and interactive computer service is depressing expected birthrates for teenaged mothers in Plaintiff States, even if other overall birth rates may have been lower than otherwise was projected.

A loss of potential population causes further injuries as well: the States subsequent “diminishment of political representation” and “loss of federal funds,” such as potentially “losing a seat in Congress or qualifying for less federal funding if their populations are” reduced or their increase diminished.

David Cohen, a law professor at Drexel University Kline School of Law, said the case should have been dismissed and the state AGs have similar problems establishing legal standing as the doctors did. “There are just way too many steps between the FDA approval and the alleged harm that these states face with many intervening actions of third parties, and that usually ends standing.” On top of that, the AGs have a problem with a legal concept known as “redressability”—plaintiffs need to show that if they win their case and get the relief they want, the harm will be alleviated. But they can’t prove that here as many abortion providers have been prepared since the spring of 2023 to offer misoprostol-only abortions. (The typical medication abortion regimen is mifepristone followed by misoprostol, but the second drug is effective on its own and often used in countries where the first isn’t available.)

In all, Cohen called the AGs intervention “a transparent ploy to get before Judge Kacsmaryk, rather than a judge in their own state, and to get appealed to the Fifth Circuit.”

Unlike the original plaintiffs, the states are not asking to have the drug’s FDA approval rescinded, a request that had big pharma companies filing briefs in support of mifepristone manufacturers. But these other changes would still be devastating for abortion access. And as University of California, Davis School of Law professor Mary Ziegler noted, the suit could be something of a Trojan horse: the AGs are also arguing that the drugs can’t be mailed due to the Comstock Act, an anti-vice law from 1873. If the Supreme Court goes for this argument, it could also affect abortions performed in clinics. (Project 2025 calls for the FDA to restore all these restrictions and then reverse its approval of mifepristone, but it appears these anti-abortion lawyers aren’t simply going to wait around and hope that happens.)

This suit has more emphasis on the Comstock Act. So it's a bid not just to find new plaintiffs but also to 1) raise less concern about the drug approval process from drug companies; 2) potentially sweep in all drugs and paraphernalia related to abortion. https://t.co/ofzilg9Hp4

— Mary Ziegler (@maryrziegler) January 16, 2025

Donald Trump gets sworn in on Monday, so his appointees at the FDA and DOJ will be representing the U.S. in this case.