Texas launched a lawsuit against the U.S. Food and Drug Administration last week over the agency’s approval of mifepristone, marking the state’s latest effort to crack down on access to abortion pills.
Joined by Florida, Texas Attorney General Ken Paxton filed the case on Dec. 9 in federal court in Wichita Falls. The two states argued in a 120-page complaint that the FDA did not properly evaluate mifepristone’s safety and effectiveness when approving the drug in 2000 and its subsequent generic versions. They also challenged the agency’s moves that expanded access to the pills, including the ability to dispense them by mail.
“The FDA’s regulation of mifepristone was political from the start,” the lawsuit said, pushing for the removal of the drug from the market.
In addition, the lawsuit argues that the Comstock Act of 1873 prohibits the mailing or delivery of anything intended for producing abortion, which could affect more than just mifepristone. The Biden administration interpreted this law, which has been unenforced for decades, to only cover unlawful abortions.
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Mary Ziegler, a professor and abortion legal historian at the University of California Davis School of Law, said it was not surprising to see this lawsuit.
In recent years, there have been several efforts in the country to legally challenge access to mifepristone — the new frontier of the fight over abortion access after the fall of Roe v. Wade. They include a case filed in Amarillo, though the U.S Supreme Court rejected it last year and said the plaintiffs didn’t have standing to sue.
There has also been rising frustration among anti-abortion activists about the federal government’s approach, including the FDA’s decision in September to approve a generic version of mifepristone. In response, the agency told The New York Times that by law, these applications must be approved if “the generic drug is identical to the brand-name drug.”
“What we’re seeing is Texas is behaving more like Joe Biden as president than you would expect, right?” Ziegler said. “This is not a situation where Ken Paxton is sitting back and saying, ‘You know, the FDA is going to make these changes.’”
Texas’ latest mifepristone lawsuit comes days after its House Bill 7, which allows private citizens to sue anyone who manufactures or distributes abortion drugs to or from the state, went into effect.
Ziegler said these developments reflect the anti-abortion movement’s reliance on the courts to make gains, as there is less political appeal to take on the issue elsewhere in the country compared to Texas.
Hold onto whatever thoughts you have about this until we proceed with news item #2.
A Waco justice of the peace who refused to marry same-sex couples filed a federal lawsuit Friday that asks the courts to overturn Obergefell v. Hodges, the 2015 Supreme Court decision that recognized same-sex marriage nationwide.
The case, filed by Judge Dianne Hensley against the State Commission on Judicial Conduct, asserts that the Obergefell ruling was unconstitutional because it “subordinat[ed] state law to the policy preferences of unelected judges.” Hensley is represented by Jonathan Mitchell, a conservative attorney best known as the architect of Texas’ 2021 abortion ban that skirted around the legal protections of Roe v. Wade.
“The federal judiciary has no authority to recognize or invent ‘fundamental’ constitutional rights,” Mitchell wrote.
In November, the U.S. Supreme Court declined to take up a similar case from Kim Davis, a former Kentucky county clerk.
What these two cases have in common, other than the obviously catastrophic outcomes they would cause if they succeeded and the truly terrible people involved in them, is that I haven’t seen any real freakout about them since they were filed. I checked a number of legal types on Twitter and BlueSky, and other than Jessica Valenti reporting on the mifepristone suit, I didn’t see anything. When one of these suits that is filed with the intent of knocking over a previous SCOTUS precedent is considered to be a real threat to it, there are alarms sounded – the Skrmetti case for puberty blockers and the Loper Bright case for Chevron deference, for example – and we know well in advance what’s coming. So far, at least, that doesn’t appear to be the case here.
Maybe everyone was still blissed out from Thanksgiving or panic-buying Christmas presents, or maybe it’s just too soon in the cycle for the freakouts. Maybe I’m not seeking the right sources, or maybe my old faithfuls are failing me. Maybe we’re all just inured to it by now. But I at least can’t live in a constant state of alarm, and so I try to parse it out as needed. And as such, I’m going to put these on the back burner, for now and hopefully for the longer term, until I’ve been given clear guidance that I can’t ignore them. Not that I can do anything right now to stop SCOTUS from doing what it’s been doing, but one thing at a time.