The Trump administration is cautiously approaching access to abortion medication in a politically sensitive legal battle that could determine availability of the drug.
The Department of Justice is urging Judge Matthew Kacsmaryk, an appointee of President Donald Trump, to dismiss a trio of conservative states’ lawsuit against the Food and Drug Administration to limit access to mifepristone. In doing so, the DOJ refrained from weighing in on the merits of the case, such as whether the drug should be available by mail or later in pregnancy.
“Trump wants to keep his options on mifepristone open. He doesn’t want that dictated by Missouri, Kansas and Idaho,” said Mary Ziegler, law professor at the University of California Davis, referring to the states suing the FDA. “This isn’t signaling that he’s taken a position on mifepristone. He’s signaling that he’s taking a position on this case needing to go away.”
The legal battle plays out as Robert F. Kennedy Jr., secretary of the US Department of Health and Human Services, has committed to reviewing mifepristone’s safety based on a widely criticized study from the conservative think tank Ethics & Public Policy Center. FDA Commissioner Marty Makary in April said he wasn’t planning to change government policy on mifepristone, though he would reconsider the issue if new data emerged.
As the lawsuit continues and the FDA gears up to reconsider safety protocols on a decades-old drug, observers say Kennedy’s review could buy more time for the administration to figure out its mifepristone policy.
“They’re going to continue to try to kick the can down the road until they have whatever policy at FDA they’re ready to announce to the public,” Ziegler said.
Litigation Looms
The litigation stems back to 2022, when conservative physicians sued the Biden administration’s FDA over mifepristone and drove the case to the US Supreme Court. The justices ruled the doctors didn’t have standing to sue. At the lower court, however, Kacsmaryk allowed the red states to take up the battle.
Since taking over the case, Trump’s team has stuck to arguing procedure, such as how the states have no reason to sue in Texas.
“This case has been kind of looming, forcing him to say something about the substance. So this is sort of a Hail Mary to Judge Kacsmaryk saying, you know, just make this go away on standing or venue,” Ziegler said.
Still, “the Trump-Vance administration has taken a lot of actions in the first 100 days against abortion and reproductive health relating to issues that the administration thinks people are paying less attention to,” said Carrie Flaxman, a Democracy Forward Foundation attorney representing
GenBioPro has intervened in the red state litigation to defend the drug should the Trump administration drop out.
Since taking office, the Trump administration has gotten rid of a Department of Defense policy that reimbursed troops for travel related to reproductive care. The Trump administration also dropped a legal fight over Idaho’s near-total abortion ban.
“It’s really a matter of time” before the administration acts on mifepristone, Flaxman said.
FDA Position
Medication abortion accounted for over 60% of abortions in 2023, up from 53% in 2020, according to the Guttmacher Institute. That increase follows 2022’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which stripped federal abortion rights. As of March 2025, Guttmacher reported that a dozen states totally ban abortion, while almost 30 have a ban based on gestational duration.
Medication abortion is seen by some as a threat to restrictions. The red states say as much in their lawsuit, writing that “the FDA has enabled online abortion providers to mail FDA approved abortion drugs to women in states that regulate abortion.”
“These dangerous drugs are now flooding states like Missouri and Idaho and sending women in these States to the emergency room,” the states said.
Greer Donley, University of Pittsburgh law professor, said that “now that Trump controls the FDA, of course he would want a strong FDA with less court oversight of his decisions.” She did note the red state case “could have potentially been a vehicle to increase regulation of mifepristone without the same political consequences for Trump.”
The push to restrict abortion pill access remains strong, even though access to medication abortion is popular. An Axios/Ipsos poll found 72% of Americans support women getting medication abortion from a clinic or doctor.
Still, the Heritage Foundation’s Project 2025 policy plan said “the FDA is ethically and legally obliged to revisit and withdraw its initial approval.”
The Trump administration has given “no indication that they’re not planning to follow through with the plan laid out in Project 2025,” said Ryan Stitzlein, vice president of political and government relations at Reproductive Freedom for All.
There’s incentive for the Trump administration to challenge the red states’ standing to argue against administrative actions, particularly to “insulate them from lawsuits from blue states,” Stitzlein said.
In 2023, as litigation over mifepristone was heating up, Democratic states sued the FDA to drop restrictions on the drug and make it easier to access. That battle is still playing out.
“Trump has packed the administration with anti-abortion extremists and lackeys who are there to implement” Project 2025, Stitzlein said. As for the litigation, “the anti-abortion movement and Republicans don’t need this lawsuit to achieve the goal that they ultimately want.”
“They have other ways that they can go about doing that,” Stitzlein said, adding they may be trying to revoke pill access via administrative action rather than the judicial process.
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