Fiercely Anti-Abortion Judge Has Bowed Out of Blockbuster Mifepristone Case

Mother Jones illustration; Will Oliver/Pool/CNP/Zuma; Allen G. Breed/AP

In a ruling by turns petulant, defiant, and resigned, a federal judge in Texas who has spent the past three years trying to help conservative groups overturn the Food and Drug Administration’s regulation of the abortion drug mifepristone has bowed out^[2] of the case.

In a final gift to abortion opponents, US District Judge Matthew Kacsmaryk has transferred the case formerly known as FDA v. Alliance for Hippocratic Medicine^[3] out of his Amarillo, Texas, court, where he is the sole federal judge, to a Missouri federal court packed with his fellow Trump appointees. The Missouri court will decide whether to allow the case to continue.

The move came Tuesday night, as a federal government shutdown loomed. In a 27-page ruling, Kacsmaryk wrote that three states that had intervened in the case back in 2023—Missouri, Idaho, and Kansas—no longer had any business being in his court.

Kacsmaryk’s hand was more or less forced after the US Supreme Court ruled^[4] 9-0 last year that the plaintiffs who first brought the Alliance lawsuit—a coalition of anti-abortion medical organizations and doctors opposed to mifepristone—didn’t have the right, or standing, to sue. The lawsuit argued that the FDA exceeded its authority when it approved mifepristone in 2000, and then again during the Obama and Biden administrations, when the agency loosened key rules and greatly expanded access to abortion drugs. But the justices ruled that the medical groups could not show that the FDA regulations caused them or their members any direct harm.

The justices, however, left open the possibility that Missouri, Idaho, and Kansas—which intervened in the case in 2023—might have standing to sue the FDA on their own.

After that ruling, the anti-abortion attorneys general of those three states sought to continue the case, now retitled Missouri v. FDA. They also argued it should remain before Kacsmaryk, a former counsel for a Christian law firm who is known for his religion-infused rulings on abortion, contraception^[5], and health privacy^[6]. 

In his ruling Tuesday, Kacsmaryk made it very clear that he disagreed with the Supreme Court’s decision that the anti-abortion medical coalition lacked standing to sue. “Decades of Supreme Court precedent led every jurist who assessed this case to conclude that the Original Plaintiffs had a jurisdictionally valid case,” Kacsmaryk wrote. But when the high court “reinterpreted those precedents,” he added, he had no choice but to obey: “It is not the province of lower courts to defy the Supreme Court.”

Which meant his role in the case was over, he concluded with apparent reluctance. “In the Supreme Court’s view, [the states] did not intervene in a jurisdictionally valid case,” Kacsmaryk wrote. “That flaw means [the states] cannot benefit from the Original Plaintiffs’ venue.” It didn’t help, Kacsmaryk added, that the states seeking to take over the lawsuit “completely fail to argue” why a case involving Missouri, Idaho, and Kansas and a federal agency based in Washington, DC should be heard in a North Texas courtroom. 

Barely concealing his frustration, Kacsmaryk pointed out there was one state that clearly did have standing to pursue the case in his court: Texas. And Texas Attorney General Ken Paxton did move to join the case^[7] this past August. But that was far too late, Kacsmaryk wrote. Had Paxton joined the case in November 2023, when the other three states intervened, “venue would plainly be proper in this district,” Kacsmaryk wrote. But “Texas cannot now intervene… in a belated attempt to establish venue.” In addition to throwing out Paxton’s motion, he denied requests by Florida^[8] and Louisiana to intervene. 

The FDA has repeatedly found mifepristone is safe and effective. Despite the end of Roe v. Wade, medication abortion now accounts^[9] for more than 60 percent of all abortions nationwide; one in four abortions now happen^[10] via telehealth-prescribed pills. That is why, 25 years^[11] after mifepristone’s approval by the FDA, the anti-abortion movement is ramping up its attacks on the drug. Just a week ago, Health and Human Services Secretary Robert F. Kennedy Jr. and FDA Commissioner Marty Makary announced^[12] that HHS would conduct a new review of mifepristone’s safety.  

In his ruling, Kacsmaryk also rejected arguments by the Trump administration’s own lawyers that Missouri, Idaho, and Kansas should not be allowed to continue in the case. 

Instead of dismissing the case, he decided to transfer it to Missouri, which has two federal court districts. Federal law “only requires transfer to ‘any district’ where the case ‘could have been brought’,” Kacsmaryk stressed in his order.

He chose the Eastern District, based in St. Louis, where eight out of the nine active judges are Republican appointees—including four named^[13] by President Donald Trump since his return to office in January and three appointed during his first term. (By contrast, the Western District of Missouri is dominated by Obama appointees.)  

All four of the new Trump judges in the Eastern District previously worked for the Missouri attorney general’s office, and two of those new judges worked directly on the mifepristone case^[14] while they were on the AG’s staff. “Clearly this district was chosen for a very specific reason and outcome,” said Kirsten Moore, director of the Expanding Medication Abortion Access Project. “It’s very hard to imagine the Eastern District of Missouri not granting standing to the attorney general of Missouri” to pursue the case against the FDA. 

“Kacsmaryk is a guy who can’t take no for an answer,” she added, “so he just keeps going.”

As I wrote last year^[15], the Alliance for Hippocratic Medicine was incorporated in Amarillo in August 2022 precisely so that it could sue in a jurisdiction where Kacsmaryk, as the only federal judge, would be guaranteed to hear the case. 

Kacsmaryk gave [the medical coalition] what it had been hoping for, issuing an unprecedented nationwide order in April 2023 that suspended the FDA’s approval of mifepristone. His opinion^[16] was filled with extremist rhetoric, calling providers “abortionists,” for instance, and claiming that mifepristone “starves the unborn human until death.”

The Fifth Circuit—one of the most conservative appellate courts in the country^[17]—nonetheless scaled back^[18] that decision, holding that the Alliance had waited too long to challenge the FDA’s original approval. But it allowed the medical group to challenge other FDA rule changes, including an Obama-era regulation allowing abortion pills to be used through 10 weeks of pregnancy instead of seven weeks and a Biden administration regulation that permitted abortion pills to be prescribed via telemedicine. 

Abortion historian Mary Ziegler, a law professor at the University of California Davis, says the ruling reflects the extent to which Kacsmaryk is trapped in “a really tricky spot.” The anti-abortion movement that he is ideologically aligned with has been fighting hard to keep the suit against the FDA alive. But Donald Trump, worried about the political repercussions, seems to want the case to go away. “The Trump administration, you know, literally said these [states] don’t have standing, kick the case out. The president who nominated him is asking him to dismiss the case, against a movement and a cause he feels strongly about.” By transferring the case to Missouri, Ziegler says, Kacsmaryk both keeps it going and “kicks the can down the road, which is really what Trump seems to want.”