The Department of Justice (DOJ) filed motions with a federal court Monday in the so-called “abortion pill case,” seeking to dismiss the case on technical grounds. 

At its core, the DOJ’s position is not supportive of abortion; rather, it supports the authority of federal agencies, which are a part of the executive branch. Instead of supporting a dubious challenge to a federal regulation on abortion, the administration is looking to protect its agencies and their rulings from court challenges. Given the administration’s recent track record with federal courts in regard to immigration, for instance, it is not surprising that the DOJ is defending regulations against court challenges. 

In 2016, the Food and Drug Administration (FDA) issued regulations allowing doctors to prescribe the drug mifepristone, also known as the “abortion pill”, which is used as an alternative to surgical abortion procedures. The FDA also allowed the drug to be prescribed by telemedicine, and to be sent through the mail. 

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization effectively returned the issue of abortion restrictions to the individual states. Prior to Roe v. Wade, which Dobbs explicitly overturned, each state regulated the availability and performance of abortions. Post-Dobbs  several states passed laws relating to the prescription mifepristone, the so-called “abortion pill.” 

In the 2024 election, candidate Trump repeatedly said that he would not support any federal action to limit abortion. That specifically included the prescription of mifepristone. Recently, the Department of Justice (DOJ) asked the District Court for the Northern District of Texas to dismiss claims by the states of Idaho, Missouri, and Kansas challenging the FDA regulations allowing the prescription and shipment by mail of mifepristone.

On the issue of abortion, the administration’s position seems clear: it does not support any federal restrictions on abortions. Dobbs returned the issue of abortion to the states, and that is where the current administration thinks the issue should remain. 

At its heart, this recent action by the DOJ is not so much about abortion as it is about executive power. When states led by Democrat governors and legislatures seek to challenge federal authority (for instance, as with changes to Medicaid), the administration will be able to claim that it opposes state challenges to federal authority on a consistent basis, apart from political motivations. That may bring relief to pro-life groups who seek to continue to restrict abortion – and it may cause further concern from other groups who will want to challenge other actions by the administration.   

The DOJ filing was based on a number of technical issues, rather than the merits of the underlying opposition to abortion. First, the DOJ filing argues that the three states – Idaho, Missouri, and Kansas – have no standing in the case, because those states have no connection to Texas where the case was filed. 

Second, the DOJ supports dismissal because the original plaintiffs in the case – a group of conservative doctors and medical associations opposed to abortion – dismissed their case after the Supreme Court ruled that they lacked standing to challenge the FDA regulations. That case – FDA v. Alliance for Hippocratic Medicine – was a unanimous decision, based on the fact that the FDA regulations did not require anyone to prescribe mifepristone. Because the regulations did not directly impact the plaintiffs, they were not entitled to challenge them.

Prior to the Supreme Court’s ruling, the three states had sought permission to intervene in the case. After the ruling in FDA v. Alliance for Hippocratic Medicine, the original plaintiffs dismissed their claims, but the three states did not. The DOJ is now asking the District Court to dismiss the states’ claims on the technical issue of standing. The DOJ specifically did not address the merits of the states’ underlying claims – their ability to regulate abortion, saying that the states could refile their claims in federal courts in each state.

However, the DOJ filing does note that another problem exists for the states’ claims – the statute of limitations. The FDA regulations were issued in 2016, which means that any challenge to them had to be filed by 2022, within the six-year statute of limitations. (A statute of limitations sets the time limit within which certain types of lawsuits must be filed.) The dismissal of the claims in Texas would require them to be refiled now – well beyond the six-year limit for challenges to the regulations.

The FDA regulation issued in 2016 was not the first to allow the use of mifepristone; rather, it simply allowed it to be prescribed up to ten weeks after conception, rather than the previous seven weeks. Accordingly, any challenge to the use of mifepristone in general would face an even higher hurdle, since the original regulation allowing it had been in place for about 25 years.

The DOJ also challenged the legal arguments used by the states to support their claim. First, the states alleged that they have an interest in protecting their citizens from complications from use of mifepristone.

That argument, however, is similar to the doctors’ original claims in the case – that they might be required to treat women who experienced complications from the pills. Second, the states claim an interest because abortions terminate the lives of people who would otherwise grow up to become taxpayers.

 The DOJ noted, “The states fail to cite any precedent supporting their theory that they can sue over any policy that affects their potential future birthrate.”