In surprising move, Trump DOJ calls for dismissal of lawsuit against abortion pill

Trump’s Department of Justice (DOJ) is calling on U.S. District Judge Matthew Kacsmaryk to dismiss an abortion pill lawsuit filed by three states in State of Missouri; State of Kansas; State of Idaho v. FDA, claiming the states do not have jurisdiction to file their case in Texas.

“The Trump administration’s request makes no mention of the merits of the case, which have not yet been considered by the courts. Rather, echoing the argument that the Biden administration made shortly before Mr. Trump took office, the court filing asserts that the case does not meet the legal standard to be heard in the federal district court in which it was filed,” wrote the New York Times (NYT).

In the 2024 presidential debate, Trump made it clear that he had no intentions of restricting the abortion pill, and some speculate whether this move was motivated by that position.

What is the Lawsuit?

The lawsuit was originally filed in Amarillo, Texas, by plaintiff doctors in the Alliance for Hippocratic Medicine (AHM); however, last year, the U.S. Supreme Court ruled that those plaintiff doctors did not have standing to sue. Then in January, Judge Kacsmaryk ruled that the states of Missouri, Kansas, and Idaho could intervene and file a complaint in the lawsuit.

In their October 2024 petition, the three states argued that their “sovereign” interest in “protecting… citizens” was violated by the Food and Drug Administration’s (FDA) decision to allow mail-order abortion pill dispensing.

“In rolling back safeguard after safeguard, the FDA has turned a blind eye to the known harms of abortion drugs to the detriment of women and girls,” they claimed.

Abortion Pill Timeline

In 1994, with the encouragement of the Clinton administration, Roussel-Uclaf assigned the U.S. rights of marketing and distribution of the abortion pill (known then as RU-486) to the eugenics-founded Population Council. The right to distribute the drugs was later handed over to Danco Laboratories, a sub-licensee of the Population Council. Then, by 1996, the Population Council (funded in part with investments from the Buffett and Packard Foundations) submitted its application for the drug to the FDA, and a series of clinical trials began.

In 2000, the U.S. FDA approved mifepristone (200mg) as an abortion pill for use up to seven (7) weeks of pregnancy in a regimen along with the drug misoprostol.

In 2016, the Obama administration FDA weakened the REMS by removing the requirements that women or teen girls take the first drug in front of a clinician, in-person at the location of a certified prescriber and that the manufacturer report the drug’s non-fatal adverse events (complications). The drug’s allowed use was also extended for use on preborn children up to 10 weeks (70 days) of pregnancy.

Then, in 2019, the FDA approved GenBioPro (GBP) (which was recently granted permission to join the lawsuit) to become the generic manufacturer of mifepristone.

In 2020, the abortion industry rolled out a ‘no-test‘ abortion pill protocol which removed important labs, testing, and bloodwork needed to accurately date a pregnancy and rule out potentially fatal ectopic pregnancies before administering the abortion pill. Rapid expansion of the abortion pill continued in the ensuing years, even as the abortion industry openly flouted FDA gestational limits and safety regulations and encouraged women to lie about abortion pill complications.

In April of 2021, under the guise of the COVID-19 pandemic, the Biden administration FDA temporarily enabled abortion pill distribution and expanded the REMS to limited mail-order pharmacy distribution. By December of 2021, the Biden FDA had further weakened the REMS by eliminating the in-person dispensing requirement and enabling the abortion pill to be permanently shipped by mail.

In January 2023, the Biden FDA further gutted the REMS by announcing it would allow retail pharmacies to dispense the drug. The FDA recently documented that between 2000 and December 2024 “approximately 7.5 million women” have used the drug to end their pregnancies.

DOJ’s Request for Dismissal 

“The States do not dispute that their Amended Complaint, standing alone, does not establish venue in this District,” DOJ’s response to Danco’s motion to dismiss stated. “Instead, they contend that ‘[b]ecause venue was valid when the States intervened, it has been satisfied.’”

“Essentially, the States argue that they can piggyback on the original Alliance plaintiffs’ venue, notwithstanding that those plaintiffs were held to lack standing and have now voluntarily dismissed their claims. As explained previously, that approach is contrary to binding precedent requiring a jurisdictionally valid suit with proper venue for an intervenor to continue litigating in the original forum,” the DOJ’s claim read.

Later, the DOJ claimed, “Because the original plaintiffs’ suit was effectively never filed, the States cannot rely on any purported jurisdiction in the original suit to justify adjudication of the States’ claims in this forum.”

“Aside from this litigation, the States do not dispute that their claims have no connection to the Northern District of Texas,” the DOJ’s reply states. “At bottom, 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. The States are free to pursue their claims in a District where venue is proper… but the States’ claims before this Court must be dismissed or transferred pursuant to the venue statute’s mandatory command.”

“Regardless of the merits of the States’ claims, the States cannot proceed in this Court. The States’ Amended Complaint should be dismissed or transferred for lack of venue,” the DOJ added.

Statute of Limitation

The DOJ argued that “Even apart from improper venue, the States’ Amended Complaint here should be dismissed for additional threshold reasons. The States lack Article III standing; they failed to exhaust their claims; and their challenge to FDA’s 2016 actions is outside the six-year statute of limitations,” they wrote.

In other words, while claims made by AHM may have been filed under the six-year statute of limitations – it appears the DOJ is suggesting that the lawsuit by intervening Plaintiffs (three states) may not have been filed within the six-year statute of limitations to have a claim against the 2016 expansion of the drug. However, changes made by the FDA in 2021 (mail-order expansions as well as 2023 pharmacy expansion) should still apply.

However, Supreme Court rulings in Loper Bright Enterprises v. Raimondo and Corner Post decisions suggest that the six-year statute of limitations could be more broadly decided. As Live Action News reported:

A companion ruling in a separate case known as Corner Post, Inc. v. Board of Governors of the Federal Reserve System could also impact the AHM case, according to the American Journal of Managed Care (AJMC): “[T]he combination of the Chevron overturn, and the Corner Post ruling could open up a new set of challenges such that a court might entertain conflicting evidence that second-guesses the FDA’s approval” of the abortion pill mifepristone (200mg), the Journal wrote.

The Corner Post ruling followed the Supreme Court ruling in Loper.

“… [T]hey basically said that the effective date, the statute of limitations effectively for an APA case was not six years from a final regulation but six years from the date that it had an impact on an injured plaintiff. Meaning… you could have regulations that have been on the books for years and years and years, but when they’re applied to a new class or a new plaintiff entity, they could be challenged anew… Read Corner Post hand in hand with Loper Bright,” Dean Rosen, Partner, Mehlman Consulting and former Chief Healthcare Advisor to Senate Majority Leader Bill Frist, stated in a July 2024 webinar organized by KFF.org.

Impact a Ruling on Comstock Act

Ironically, the abortion pill lawsuit was also set to address the federal Comstock Act which restricts the shipment or mailing of “abortifacient matter through express companies, common carriers, or interactive computer services.”

At least two U.S. Supreme Court Justices previously hinted that the Comstock Act could be in play during oral arguments in the AHM v. FDA lawsuit.

Today, even though abortion providers in multiple states are admittedly shipping abortion drugs “unlawfully” into states that prohibit them or restrict telehealth dispensing, President Trump told CBS News that he would not use Comstock to ban mail delivery of the drugs, as Politico reported.

“The federal government should have nothing to do with this issue,” Trump stated last summer.

In the current abortion pill litigation, the three states argued:

The FDA’s 2021/2023 Removal of the In-Person Dispensing Protection violates the federal laws that expressly prohibit the mailing or delivery by any letter carrier, express company, or other common carrier, or by interactive computer service, of any substance or drug intended for producing abortion” by “impermissibly remov[ing] the in-person dispensing requirement for abortion drugs and, accordingly, authorized the downstream distribution of abortion drugs by mail, express company, other common carriers, and interactive computer service.

“Because a federal agency cannot permit what federal law expressly prohibits, the FDA lacked legal authority when issuing the 2021/2023 Removal of the In-Person Dispensing Protection,” the lawsuit claimed. That decision “failed to account for or address the federal laws that prohibit the distribution of abortion drugs by postal mail, express company, or common carrier and by interactive computer service.”

The FDA permitted and sometimes even encouraged these illegal activities. But a federal agency cannot authorize unlawful actions.

Live Action News will update once Judge Kacsmaryk rules on the DOJ’s request to dismiss the lawsuit.