Justice Department's attack on red states widens GOP rift on abortion pill rules ahead of midterms

The "Trump-Vance administration" is threatening women's lives and enabling their domestic abuse, according to a major player in election spending.

It's not an abortion-rights group.

Susan B. Anthony Pro-Life America, which plans to spend $80 million in the midterm elections on protecting a pro-life legislative majority, accused its putative White House ally of "siding with the abortion industry as it breaks laws, kills babies and harms women and girls" by seeking to tank red-state lawsuits against its predecessor's policies.

The Justice Department filed motions this month to pause or even dismiss separate litigation by Missouri, Idaho and Kansas, and Florida and Texas, to end the Biden administration's relaxation of prescribing conditions for mifepristone, which is taken with misoprostol to suffocate and starve to death a fetus and expel it from the uterus.

The prior administration permanently removed the in-person prescribing requirement, a temporary COVID-19 measure, following the Supreme Court's elimination of federal abortion rights in Dobbs, circumventing state regulation. The Obama administration previously extended mifepristone's gestation window to 10 weeks and allowed non-doctors to prescribe it.

President Trump's DOJ has not relented in its argument, first made to halt or shut down Louisiana's challenge to mifepristone's availability by mail, that the states do not have legal standing to sue the feds and their litigation threatens the administration's own review of mifepristone's safety profile, which DOJ admitted may not be finished by midterms.

While reimposed restrictions on abortion pills could energize Democratic turnout in the midterms, just as Dobbs energized voters to protect abortion in states with GOP-controlled legislatures, SBA Pro-Life America warned the GOP is facing a electoral clobbering if the Trump administration doesn't restrict abortion pills.

It cited a national survey of 1,000 GOP primary voters by Cygnal last month that found 71% oppose mifepristone's lack of "in-person consultation" and 75% want congressional Republicans to "aggressively oversee" the Department of Health and Human Services on abortion. 

About a third each "would be less enthusiastic about voting" if GOP leaders "abandon pro-life policies" and less willing to volunteer for campaigns. Only one-in-five knows abortions have risen since Dobbs, and when informed, 73% "find this concerning."

Missouri GOP Sen. Josh Hawley, a vocal critic of Food and Drug Administration Commissioner Marty Makary for mifepristone decisions including authorizing a generic form, last week introduced legislation with Tennessee GOP Rep. Diana Harshbarger to ban mifepristone for "pregnancy termination" and authorize victims' lawsuits against its makers.

Previous FDAs have "steadily dismantled critical safety safeguards" around mifepristone, including by ending government tracking of "the most serious complications" from the drug, said Harshbarger, a pharmacist. "Evidence now suggests that the real-world risks to women are far greater than the federal government has acknowledged."

SBA Pro-Life America pointed to the latest prosecution of a man for allegedly giving mifepristone to the mother of his unborn child without telling her – an outcome made possible by mail-order prescription – after she repeatedly refused his pressure to get an abortion. The girl, Presley Mae, was stillborn.

The pro-life powerhouse mocked Secretary of Health and Human Services Robert F. Kennedy Jr. for showing greater concern about the sugar in Dunkin' coffee than the online prescribing of pills that end human life and "put thousands of women in the ER," apparently referring to mifepristone complication research published last spring.

The Ethics and Public Policy Center, one of the groups to analyze that mifepristone prescription database, published a "fact sheet" last week that estimated adverse events following mail-order pills were 13.5 percentage points higher than for in-person dispensing, which the FDA required before authorizing mail order as a COVID-19 emergency measure.

"More Americans die from abortion drugs than fentanyl, cocaine and heroin combined. Haven’t we seen enough ‘American carnage’?" SBA Pro-Life America said, referring to President Trump's polarizing first inauguration speech. It emphasized the first Trump administration banned mifepristone by mail but was now refusing to reinstate its own policy.

It seized on DOJ's admission in a March 3 supplemental brief in the Louisiana challenge that Kennedy has statutory authority to "immediately" suspend mifepristone if he finds "an imminent hazard to the public health." 

U.S. District Judge David Joseph had asked for a briefing on the "FDA’s authority to issue interim orders ... if confronted with concerning information during its review process."

SBA Pro-Life America wrote on X: "Women have been poisoned by abusive partners. Pressured and coerced by boyfriends or family members into taking these drugs." 

"Others have suffered severe, life-threatening complications after taking them alone at home. Some have even died," it also said. "When anyone can order life-ending drugs online without safeguards, a crisis is inevitable."

Trump administration says it's not 'standing in the way'

DOJ's motions to stay or dismiss lawsuits by the two groups of states, filed March 6 and March 13, make the same arguments with two exceptions due to different claims by each group. 

Missouri, Idaho and Kansas, which initially joined a lawsuit by pro-life emergency room doctors who unsuccessfully argued they had legal standing, argued they have standing to sue for "the loss of fetal life and potential births," a theory SCOTUS prohibits, DOJ said. They are also challenging regulatory changes since 2016, which are "time-barred."

Florida and Texas aren't arguing for standing based on loss of fetal life, and their challenges to FDA mifepristone rules from 2000, 2016 and 2019 are also time-barred, DOJ said.

The two groups of states "threaten to short-circuit the agency’s orderly review and study of the safety risks of mifepristone" through the Risk Evaluation and Mitigation Strategy review announced by Kennedy and Makary last fall, DOJ said in both filings.

The federal agency warned that granting the states relief is likely to prompt "conflicting injunctions" from other courts hearing challenges by abortion-rights groups. While neither group "appropriately" has sought a preliminary injunction, "the ultimate relief they request threatens to spark a judicial tug-of-war," DOJ said.

Florida and Texas "waited 25 years to challenge the approval of mifepristone," nearly 10 for the Obama administration's changes, seven for "the first generic equivalent" under the Trump administration, and nearly three for the mail-order change, so they "cannot seriously claim prejudice from the additional time necessary" for the FDA's review. 

DOJ said the same about Missouri, Idaho and Kansas waiting "nearly a year" to challenge the permanent mail-order authorization.

The feds insisted the states "remain free to make and enforce their pro-life policies" and the Trump administration is not "standing in the way," ignoring their central argument that mail-order prescribing neuters their ability to enforce their laws.

DOJ's move is exacerbating the rift between President Trump's pro-life supporters and critics within the conservative movement, the latter of whom questioned why the former acted surprised by the motions against states' litigation.

Trump's estranged former veep, Mike Pence, praised SBA Pro-Life America on Saturday morning for speaking against the "Trump-Vance DOJ" for twice siding with abortion providers in a week, in the separate motions against the two groups of states. 

JD Vance has received high-profile endorsements to succeed Trump including from perceived rival Secretary of State Marco Rubio; former Virginia GOP Gov. Glenn Youngkin; and Erika Kirk, the widow of the late conservative activist Charlie Kirk.

"Trump-Vance has been utterly consistent on its defense of mail-order mifepristone since the day Vance was tapped as running mate," Washington Examiner senior editor Peter Laffin wrote on X, referring to Vance's 2024 interview supporting Trump's position. Trump's FDA also approved a generic form of mifepristone after promising a safety review.

"The GOP weakened the pro-life planks of its platform because of Trump. And the ticket got pro-life support anyway. Now here we are," National Review contributor Alexandra DeSanctis Marr wrote on X.

"One of the most bizarre aspects of Trumpism is the way in which pro-Trump evangelicals will bully anyone who breaks with Trump as a baby-killer while doing nothing at all to arrest the GOP's slide into becoming a pro-choice party," wrote New York Times columnist David French, who voted for abortion-rights champion Kamala Harris to "save conservatism from itself."

"Breaking with Trump *is* the pro-life move," said French, a founder of The Dispatch, which got SBA Pro-Life America's election ads censored by Facebook two weeks before the 2020 election through a botched fact-check that falsely claimed then-Democratic nominee Joe Biden and his running mate Harris didn't support late-term abortions.