The Accelerating Project to Extend Abortion Bans to All 50 States
As Louisiana Solicitor General Ben Aguiñaga again laid out the state’s case this week, arguing that it did have standing to sue the FDA, he didn’t have to emphasize his indignation about the fact that people are still having abortions in Louisiana despite the state’s ban. But he did, repeatedly claiming that “it happens a thousand times a month” and that the FDA allowed it to happen simply by having made mifepristone available by mail without an in-person appointment. Judge Stephen Higginson, who was appointed to the Fifth Circuit by President Obama, did not seem impressed with this reasoning. To him, he said, it sounded like the state was “really just asking the federal government to help you impose your criminal laws.” The case wasn’t about the FDA or its guidelines, in other words; it was about finding a way to enforce Louisiana’s abortion ban, using the power of the federal government.
The anti-abortion movement’s legal strategy of going after the FDA is not new. But it has become more complicated now thatthe Justice Department’s posture toward the agency and its authority is changing dramatically, Kirsten Moore told me. Moore is the director of the EMAA Project, which works to expand access to medication abortion. The Trump regime is responsible for the sea change. “We saw, in the prior administration, DOJ really robustly defending FDA’s authority, and their willingness to follow the process Congress had laid out for them,” she explained. That’s unsurprising; the FDA’s authority, delegated by Congress, is well established. “This administration,” however, “just isn’t doing that.”
The sea change was evident in the performance of the Department of Justice attorney, Daniel Winik. At oral arguments, he repeatedly refused to speak to the FDA’s mifepristone guidelines. He would not address anything the judges asked as it related to medication abortion. “We have not taken a position,” he said, on any of the “merits issues in the case.” All there was to do, he said, was to tell the court that Louisiana lacked standing in the case. “I don’t find that very satisfactory,” replied Judge Higginson. “I mean, this is your regulation.”
