Dueling Rulings on Abortion Drug

Happy Tuesday! You’re going to want to check out the latest from the James Webb Space Telescope: It recently captured some stunning pictures of Uranus.

Quick Hits: Today’s Top Stories

• President Joe Biden signed a resolution Monday formally ending the COVID-19 national emergency that former President Donald Trump first enacted in early 2020. Biden originally planned to let the emergency declaration expire in May, but signaled last month he would not veto a measure—first passed by House Republicans—ending the emergency earlier.
• Former President Trump on Monday appealed an order requiring former Vice President Mike Pence to testify before the grand jury investigating Trump’s attempts to overturn the 2020 election. Trump had originally challenged special counsel Jack Smith’s move to compel Pence to testify, citing executive privilege, but Chief Judge James Boasberg of the D.C. District Court ruled against the former president last month—and Pence had signaled he would not appeal the decision. The D.C. Circuit Court of Appeals—which last week rejected Trump’s motion to block senior aides from testifying to the grand jury—will now decide on the former president’s renewed challenge.
• The State Department formally announced Monday it’d determined Russia had “wrongfully detained” Wall Street Journal reporter Evan Gershkovich, who was arrested and charged with espionage in late March. The special designation, which typically takes months to reach, transfers jurisdiction of the case to the State Department’s Office of the Special Presidential Envoy for Hostage Affairs and allows the U.S. government to pressure the Russian government to free Gershkovich, who could face a 20-year prison sentence if convicted.
• Following an increase in attacks from Gaza and Lebanon in recent weeks, Israeli Prime Minister Benjamin Netanyahu on Monday officially reversed his decision to fire Defense Minister Yoav Gallant. Netanyahu had first announced his dismissal of Gallant about two weeks ago, when the defense minister called on the government to pause Netanyahu’s controversial judicial reforms.
• An employee of a Louisville, Kentucky branch of Old National Bank shot and killed five people—including at least four bank employees, one a close friend of Gov. Andy Beshear—and wounded nine others in an attack Monday morning. Police say the assailant live-streamed some of the shooting on social media before officers returning his fire killed him at the scene.
• Nashville’s Metro Council voted unanimously to reinstate Democratic State Rep. Justin Jones on Monday, days after a Republican supermajority ejected him from the Tennessee legislature for interrupting proceedings with a protest over the mass shooting at the Covenant School in Nashville last month. He was sworn in again Monday, and will hold the seat until a special election can be called. Shelby County commissioners, meanwhile, will meet Wednesday to consider reappointing Jones’ fellow ousted Democrat, Rep. Justin Pearson.
• The Commerce Department reported Wednesday that new orders for durable goods—including appliances, computers, and machinery intended to last three or more years—increased a seasonally adjusted 0.5 percent from January to February, making up ground lost in January. Nondurable goods inventories fell month-over-month by the same margin.
• President Biden told NBC News’ Al Roker on Monday he’s “planning on running” for reelection in 2024, but said he’s “not prepared to announce it yet.” Democratic Sen. Bob Casey of Pennsylvania, meanwhile, announced yesterday he will seek reelection for a fourth term next year, bolstering Democrats’ chances of retaining the majority in the Senate. Pennsylvania, a key battleground state, was the most expensive U.S. Senate contest in 2022, and two failed Republican candidates from last year—former hedge fund CEO Dave McCormick and State Sen. Doug Mastriano—are reportedly considering mounting challenges to Casey.
• Republican businessman Bernie Moreno filed paperwork on Monday to challenge Democratic Sen. Sherrod Brown of Ohio for his U.S. Senate seat next year, joining State Sen. Matt Dolan in the race for the GOP nomination. Meanwhile, Republican Sheriff Mark Lamb filed to run for U.S. Senate in Arizona, vying for the seat currently held by independent incumbent Sen. Kyrsten Sinema.

A Legal Debate Over Mifepristone

The Food and Drug Administration on Friday received a two-step to-do list from a pair of federal judges in Texas and Washington:

1. Yank approval of the abortion drug mifepristone
2. Touch nothing about the mifepristone status quo

What’s a law-abiding federal agency to do?

This is not a rhetorical question—in a filing Monday, the FDA requested clarification on how it’s supposed to square this circle. Both judges issued preliminary injunctions rather than ruling on the underlying legal questions, and the issue could eventually head to the Supreme Court—the Biden administration has already asked the Fifth Circuit to issue an order keeping the FDA’s mifepristone approval intact. The drug is included in the most common method of abortion in the United States today, so any new restrictions on its use will have enormous ramifications—which may explain why some Democratic lawmakers have advocated for the FDA to ignore (one of) Friday’s rulings.

Mifepristone—the drug at the center of both cases—is the first in a two-step abortion regimen that also includes misoprostol. Mifepristone blocks the hormone progesterone, killing the embryo or fetus, while misoprostol causes contractions. As we wrote last month, about 85 percent of patients receiving a chemical abortion report side effects like fever or nausea, but the FDA has recorded serious side effects like sepsis in less than 1 percent of cases—though the data has gaps.

In Texas, a coalition of pro-life groups and doctors alleged the FDA’s approval of mifepristone in September 2000—as well as the agency’s pandemic-era loosening of restrictions to allow telehealth prescriptions, mail delivery, and pharmacy sales of the drug—failed to follow proper protocol and has hampered physicians’ ability to provide quality care to pregnant mothers and their children. U.S. District Judge Matthew Kacsmaryk, a Trump appointee, agreed with the pro-life plaintiffs. “The Court does not second-guess FDA’s decision-making lightly,” Kacsmaryk wrote in his 67-page decision. “But here, FDA acquiesced on its legitimate safety concerns—in violation of its statutory duty—based on plainly unsound reasoning and studies that did not support its conclusion.”

Meanwhile, 17 Democratic-led states and Washington, D.C., sued the FDA in Washington state from the opposite direction, arguing the agency placed too many restrictions—including extra prescriber certifications and safety warnings for patients—on mifepristone distribution. Judge Thomas Rice, an Obama appointee, didn’t order the FDA to drop the extra safety restrictions or issue the nationwide order the plaintiffs sought, but he did tell the agency not to touch mifepristone access in the states that sued. “It is not the Court’s role to review the scientific evidence and decide whether mifepristone’s benefits outweigh its risks,” Rice wrote, but he added that the FDA is banned from “altering the status quo” on mifepristone access in these states until a ruling on the merits of the case.

Each decision has been praised by people happy with the respective outcomes—and criticized by analysts more focused on the details of the legal process. “[Kacsmaryk’s opinion] is just characterized by one bit of bootstrapping after another to reach a judgment that—whatever one thinks of the policy—just wasn’t really properly before the court,” Jonathan Adler, a professor at Case Western Reserve University School of Law, said of the Texas decision. Legal researchers have argued the plaintiffs—a coalition of pro-life groups and doctors—didn’t sufficiently demonstrate they’d face imminent harm if the mifepristone approval was allowed to stand and that decades of relatively low complication rates among women using mifepristone negate the argument that the FDA rushed an unsafe drug to market. The FDA has recorded only 28 deaths among women in the U.S. using mifepristone for an abortion since the agency approved it in 2000 and concluded none could be causally attributed to the drug.

Adler doesn’t like Rice’s decision much better. “It’s not clear how the states have standing in that case,” he told The Dispatch. “How do they have standing to get an order barring the FDA from doing something the FDA wasn’t going to do? … The best thing you can say about the Washington case is that it’s much shorter [than Kacsmaryk’s ruling] and doesn’t even bother to try and explain some of the goofy things it does.”

So far, the FDA has simply asked Rice to clarify how his ruling fits in with the Texas decision. But depending on further appeals and circuit court decisions, both decisions could end up at the Supreme Court—where the justices may decide on issues of standing rather than the merits. 

Even if Kacsmaryk’s ruling goes into effect, mifepristone won’t vanish into thin air. Off-label prescription of the drug for abortions is already common outside the 10-week gestational window approved by the FDA—and if Washington Gov. Jay Inslee’s recent move to stockpile three years’ worth of the drug is any signal, off-label use would likely continue in states where it’s legally permitted. 

Still, Kacsmaryk’s decision—and the new precedent of blowing past the FDA’s usually years-long process for withdrawing drugs—could spook the manufacturers of other FDA-approved but controversial treatments like hormone therapies or COVID-19 vaccines. “If any judge can reopen a drug based on the evidence in this kind of case, I do think that legitimately gives many people in pharma considerable heartburn and concern,” said I. Glenn Cohen, a professor at Harvard Law School. “Especially given the amount of money and time it takes to get one of these drugs approved.” More than 400 leaders at various drug and biotech companies—none mifepristone manufacturers—signed a letter released Monday decrying Kacsmaryk’s ruling. “If courts can overturn drug approvals without regard for science or evidence, or for the complexity required to fully vet the safety and efficacy of new drugs, any medicine is at risk for the same outcome,” it read.

The FDA does have discretion over what rules to spend resources on enforcing, so the White House could conceivably put out the word that it won’t punish continued mifepristone use. Democratic Rep. Alexandria Ocasio-Cortez this weekend encouraged it to do just that. “I believe that the Biden administration should ignore this ruling,” she told CNN Friday, condemning “deeply partisan” judges for engaging in “unprecedented and dramatic erosion of the legitimacy of the courts.” Democratic Sen. Ron Wyden of Oregon, meanwhile, declared Biden must “ignore this ruling and keep mifepristone on the market and accessible for every woman in America.” At least one Republican—Rep. Nancy Mace of South Carolina—agreed.

Openly defying a court ruling, however, would carry serious political and democratic consequences—and it wouldn’t necessarily safeguard full access to mifepristone. “That would only be a policy that might change with the next administration,” Cohen said. “[There’s a] question about whether the various makers of the drug and physicians who prescribe it would be comfortable doing so if it was unapproved, even if they have the assurances of enforcement discretion.” 

Adler agreed, comparing the situation to the federal government’s decision not to prosecute its marijuana ban. “The fact that marijuana remains illegal has an effect on tax law, has an effect on banking law, has an effect on gun purchases,” he said. “Just because the federal government decides that it’s not going to enforce something—that doesn’t change the law.”

White House press secretary Karrine Jean-Pierre said Monday it would set a “dangerous precedent” to disregard the ruling, but added the administration is ready for a long legal fight against the Texas decision. The Department of Justice has already filed asking the Fifth Circuit to hit pause on Kacsmaryk’s decision—the judge himself delayed its effect a week to leave time for an appeal. “Rather than preserving the status quo, as preliminary relief is meant to do,” the DOJ said. “The district court upended decades of reliance by blocking FDA’s approval of mifepristone and depriving patients of access to this safe and effective treatment, based on the court’s own misguided assessment of the drug’s safety.”

And if the Fifth Circuit agrees, some analysts expect results before Kacsmaryk’s decision even takes effect. “If the Fifth Circuit is going to overturn Judge Kacsmaryk, they will do it this week,” said Katie Glenn Daniel, state policy director for SBA Pro-Life America. “They want to minimize any type of confusion or whiplash between policies.”

GOP Frets About Post-Dobbs Future

Prior to the Supreme Court handing down its Dobbs decision, some of the GOP’s largest factions—social conservatives, constitutional originalists—could easily unite in opposition to Roe v. Wade, agreeing, as Justice Samuel Alito wrote last summer, that “the Constitution does not confer a right to abortion.”

But the Court’s landmark decision brought an end to that uneasy anti-Roe coalition, revealing the amalgamation for what it was: a group of fellow travelers whose interests aligned to a point, but who had their own, separate visions for what would replace the status quo. Was overturning Roe and returning the abortion issue to the states the end goal, as many Federalist Society types saw it? Was Alito’s Dobbs decision the first step toward a nationwide ban? Is there a middle ground that’s both morally acceptable to the pro-life movement and electorally popular?

The Republican Party isn’t sure—and party and grassroots leaders alike are starting to worry the indecision will have lasting consequences for both the GOP and the pro-life movement.

As we noted last week, liberal Judge Janet Protasiewicz easily defeated her more conservative opponent—former Justice Daniel Kelly—to secure the open seat on Wisconsin’s high court in a race widely considered to be a referendum on abortion. Even Kelly’s allies admitted as much. “We haven’t put together a coherent message or a coherent policy response since Roe v. Wade was overturned,” said Mark Jefferson, the executive director of the Republican Party of Wisconsin. 

Protasiewicz and her allies spent nearly 1.5 times more than Kelly on the race, but the results in Wisconsin aren’t a one-off. Although the pro-life movement has experienced a string of monumental judicial victories in recent months, it’s been dealt loss after loss at the ballot box—in red states like Kansas and Kentucky as well as purple or blue ones like Michigan. When only a handful of Republican lawmakers celebrated Judge Kacsmaryk’s mifepristone ruling—ostensibly a massive pro-life victory—it’s clear the issue has become politically toxic. 

“I think for panic coming out of Wisconsin, the result is partly because it’s a string of losses now,” Jon Schweppe, the policy director of the pro-family American Principles Project, told The Dispatch. “A lot of us are looking at the midterms and seeing failures there, and wondering how long this is going to keep going.”

Following the GOP’s historic underperformance in November, Republican leaders have spent the past few months trying to figure out what happened—or at least shift the blame. An immediate takeaway—and inarguably a correct one—was that former President Trump boosted several candidates in Republican primaries that turned off independent voters. Upon catching wind of this theory, Trump offered an alternative. “It wasn’t my fault that the Republicans didn’t live up to expectations in the MidTerms,” he argued. “It was the ‘abortion issue,’ poorly handled by many Republicans, especially those that firmly insisted on No Exceptions, even in the case of Rape, Incest, or Life of the Mother, that lost large numbers of Voters.”

The comment drew a rare rebuke from Susan B. Anthony Pro-Life America. “The approach to winning on abortion in federal races, proven for a decade is this: state clearly the ambitious consensus pro-life position and contrast that with the extreme view of Democrat opponents,” the group said in a statement.

The problem, of course, is agreeing on what that “ambitious consensus pro-life position” looks like. “There was so much of a focus for almost 50 years on the necessity of a legal strategy to overturn Roe because that was a prerequisite for doing anything else,” Patrick Brown, a senior fellow at the Ethics and Public Policy Center and pro-life and family policy advocate, told The Dispatch. “Pro-lifers are now having to come to grips with real prudential strategic decisions that [were] always sort of abstract before.”

With their newfound, post-Roe freedom, should pro-life lawmakers in states around the country advocate for and enact the most restrictive bills they can squeak through their respective legislatures? Should they try to hammer out compromises with their colleagues who are more moderate on the issue? Should they wait for Congress to try to implement something workable at the national level?

Despite decades of anti-Roe messaging about “returning the issue to the states,” Schweppe is starting to come around to the idea of the GOP adopting a national consensus position on the issue. “The alternative is suiciding the pro-life movement. We are months away from that happening,” he tweeted last week after the results in Wisconsin came in. “We need to give GOP politicians a winning message on life NOW. If we don’t, they will abandon us and embrace ‘no federal role.’”

Sen. Lindsey Graham of South Carolina tried to do exactly that last September, introducing federal legislation Republican candidates could point to when asked for their position on the issue. It’d prohibit doctors from performing abortions after 15 weeks gestation, with exceptions for cases involving “rape, incest, or risks to the life and physical health of the mother.”

That framework doesn’t go nearly as far as many pro-lifers want—some have pushed total bans with even more limited carve-outs—but it has the benefit of polling well. A Harvard-Harris survey conducted last year found just 28 percent of respondents believed abortion should be allowed beyond 15 weeks. “When every [Democratic] ad has been, ‘You support forcing rape victims to have babies,’ of course voters are going to be spooked and vote a certain way,” Schweppe said. “[But] when you compare a reasonable bill like Lindsey Graham’s 15-week-bill to the Democrats’ support for taxpayer-funded abortion on demand to 40 weeks, I think it’s a winning issue for us.”

But even a 15-week ban would face a number of obstacles—and not just because the legislative filibuster is still intact. It’s not at all clear Congress even has the authority to implement abortion restrictions nationwide, and even if it does, good luck telling Republicans at risk of a primary challenge to settle for 15 weeks. “Only 7 percent or less of abortions are happening after week 15,” Brown told The Dispatch. “The temptation that I fear [is] a lot of Republicans who just wish the social issues would go away would fall into, ‘Well we’ve passed Lindsey Graham’s 15-week abortion bill at the federal level, and so our work here is done.’”

You can see this phenomenon at play in Florida, where Gov. Ron DeSantis—previously fine with the state’s 15-week ban—signaled his support for a six-week ban as he plots a run for president. 

“I want to see abortion ended in this country,” Schweppe said. “But the only way we’re going to get there is if the American people support what we’re doing.”

Worth Your Time 

• For National Review, Charles C.W. Cooke bemoans the broken incentive structures in our politics, personified in Vivek Ramaswamy, who is, at least nominally, running for the GOP presidential nomination. “Ramaswamy isn’t really running for president,” he writes. “For the better part of two decades, the incentive structures underneath our national politics have been hopelessly upside down, and nowhere has this been more acute than in the realm of presidential primaries. There is, it now seems, no obvious downside to running for president and ‘losing,’ when ‘losing’ is as seductive as it is. Given the size of the market and the breadth of the coverage, even our no-hopers are guaranteed by their mere participation to gain bigger contracts on the radio, larger advances on their books, higher speaking fees on the road, and a great deal more besides. It was inevitable that, at some point, a talented entrepreneur would come along and truly industrialize the process, and so it has come to pass. Ramaswamy 2024: Buy the book, the ETF, and the imminent show on Fox Business—weekdays at 7 p.m. ET.” 

Presented Without Comment

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Toeing the Company Line

• In case you missed it: On May 1, Jonah, Steve, and Stirewalt will record a special, live edition of The Remnant at the American Enterprise Institute in Washington, D.C. If you live in the area and are interested in a conversation about the state of cable news in America, be sure to RSVP here. You should probably hurry, though—we hear space is limited and almost gone.
• It’s Tuesday, which means Dispatch Live (🔒) returns tonight at 8 p.m. ET/5 p.m. PT! Members of the team will discuss the news of the week and, of course, take plenty of viewer questions! Keep an eye out for an email later today with information on how to tune in.
• In the newsletters: Kevin looks at (🔒) what the Whig Party might have to teach modern Republicans, and the Dispatch Politics team reports on the prospects of an independent presidential bid in 2024. “No Labels is building a confidential list of potential candidates that it views as politically pragmatic and positioned to win over voters left and right who are dissatisfied with the possibility of a 2020 Trump/Biden do-over,”  they write. “[That’s] a prospect internal No Labels polling shows many find unappealing.”
• On the podcasts: Sarah and David discuss the latest abortion drug rulings, Justice Clarence Thomas’ friendship with Harlan Crow, the latest legal developments regarding transgender athletes, and more.
• On the site: Emma Rogers explains efforts in Congress to repeal two authorizations for use of military force and Leon Aron writes on Vladimir Putin’s chilling historical precedent for targeting Russian children who oppose the government.

Let Us Know

If you consider yourself pro-life, are you in favor of state lawmakers passing the strictest abortion restrictions they can, even if doing so sparks an electoral backlash? Or do you think lawmakers should try to build gradual consensus on more moderate restrictions that are more likely to endure?

If you support continued abortion access, are you more confident now than you were last June that strict abortion restrictions are not politically tenable in the long-run?