The Texas judge who previously halted approval of the nation’s most common method of abortion ruled Thursday that three states can move ahead with another attempt to roll back federal rules and make it harder for people across the U.S. to access the abortion drug mifepristone.
Idaho, Kansas and Missouri requested late last year to pursue the case in federal court in Amarillo, Texas, after the U.S. Supreme Court issued a narrow ruling finding that abortion opponents who first filed the case lacked the legal right to sue.
The only federal judge based in Amarillo is Matthew Kacsmaryk, a nominee of former President Donald Trump who in recent years ruled against the Biden administration on several issues, including immigration and LGBTQ protections.
The states want the federal Food and Drug Administration to prohibit telehealth prescriptions for mifepristone and require that it be used only in the first seven weeks of pregnancy instead of the current limit of 10 weeks. They also want to require three in-person doctor office visits instead of none to get the drug.
That’s because, the states argue, efforts to provide access to the pills “undermine state abortion laws and frustrate state law enforcement,” according to court documents.
Meanwhile, Kacsmaryk said they shouldn’t be automatically discounted from suing in Texas just because they’re outside the state.
The American Civil Liberties Union said Thursday that the case should have been settled when the U.S. Supreme Court unanimously preserved access to mifepristone last year, where the justices issued a narrow ruling finding that abortion opponents who first filed the case lacked the legal right to sue.
Kacsmaryk’s decision “has left the door open for extremist politicians to continue attacking medication abortion in his courtroom,” the ACLU said.
The ruling comes days before Trump begins his second term as president, so his administration will likely be representing the FDA in the case. Trump has repeatedly said abortion is an issue for the states, not the federal government, though he’s also stressed on the campaign trail that he appointed justices to the Supreme Court who were in the majority when striking down the national right to abortion in 2022.
In the years since, abortion opponents have increasingly targeted abortion pills, largely due to most U.S. abortions being carried out using drugs rather than through surgical procedures. So far, at least four states — Indiana, Missouri, New Hampshire and Tennessee — have seen Republicans introduce bills aimed at banning pills. None take the same approach as Louisiana, which last year classified the drugs as controlled dangerous substances.
Previously, Kacsmaryk sided with a group of anti-abortion doctors and organizations that wanted the FDA to be forced to rescind entirely its approval of mifepristone in 2000.
Yet the states are pursuing a narrower challenge. Rather than target the approval entirely, they sought to undo a series of FDA updates that have eased access.
But while the states’ leaders are pushing to severely limit access to the drugs, voters in Missouri sent a different message in November when they approved a ballot measure to undo one of the nation’s strictest bans. In Idaho, abortion is banned at all stages of pregnancy. In Kansas, abortion is generally legal up until the 22nd week of pregnancy.
Across the U.S., 13 states under Republican legislative control bar abortion at all stages of pregnancy, with some exceptions, and four more ban it after the first six weeks — before women often know they’re pregnant.
Some Democratic-controlled states have adopted laws seeking to shield from investigations and prosecutions the doctors who prescribe the pills via telehealth appointments and mail them to patients in states with bans. Those prescriptions are a major reason a study found that residents of states with bans are getting abortions in about the same numbers as they were before the bans were in place.
Mifepristone is usually used in combination with a second drug for medication abortion, which has accounted for more than three-fifths of all abortions in the U.S. since the Supreme Court’s ruling overturning Roe v. Wade.
The drugs are different than Plan B and other emergency contraceptives that are usually taken within three days after possible conception, weeks before women know they’re pregnant. Studies have found they’re generally safe and result in completed abortions more than 97% of the time, which is less effective than procedural abortions.