The Trump administration is moving with uncharacteristic timidity on key abortion pill cases, even as the Department of Justice wastes no time weighing in on other legal battles.
In several cases where the Biden administration had been defending access to mifepristone, one of two drugs used in abortion medication, the Trump administration has now asked judges in Hawaii, Virginia and Texas for a 60-day extension to decide how it’ll keep handling those cases, saying it needs the time “to familiarize itself with the issues.”
The approach seems surprising given how quickly the Justice Department moved to drop a lawsuit to protect access abortions in situations where a patient’s life is at risk — one of the most consequential federal cases since Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.
While most judges have obliged the request, the federal judge in the Virginia case is forcing the Department of Justice to come up with answers by Tuesday.
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U.S. Magistrate Judge Joel Hoppe, in the U.S. District Court for the Western District of Virginia, noted that government lawyers failed to explain why exactly the extra time would be needed. Instead, the judge said, the time between when Donald Trump was sworn in and the March 18 deadline has been “more than sufficient to accommodate defendants’ asserted need to familiarize themselves with the issues,” per court filings.
On the campaign trail, Trump said he would “not block” access to abortion pills — a statement that angered anti-abortion leaders — and was happy to avoid talking about abortion in the lead up to the election. What the Justice Department files in the case will be the first official glimpse at how the Trump administration plans to handle abortion pills — the most common abortion method in the U.S. — moving forward.
Legal experts and advocates from both sides, anti-abortion and pro-abortion rights, say the administration’s request to put the cases on hold could mean a complete reversal in the federal government’s approach to the cases.
“I hope it’s a great sign” that the administration is seeking to pause abortion pill cases, said Sen. Josh Hawley, who has urged Trump officials to reinstate restrictions, including prohibiting the pill from being accessed via mail. “I hope the Trump administration will put back in place the in-person dispensing requirement,” Hawley said.
One former Justice Department official, who spoke to NOTUS on condition of anonymity to speak freely about these ongoing cases, described the current legal situation as a complicated dance between the White House, the Food and Drug Administration and the DOJ. Any pullback on abortion access would have to start with the FDA adding restrictions and the Justice Department defending that new policy.
“It is really troubling. I have a lot of worries about whether they’ll stick with the science,” the official said, noting how Health and Human Services Secretary Robert F. Kennedy Jr. and Trump’s pick to lead the FDA, Marty Makary, have indicated that they would conduct a new “safety” review of the drug on Trump’s orders.
Of the five abortion pill cases the Trump administration inherited from its predecessor, four were brought by abortion rights organizations seeking to expand access to abortion pills. The last case — and the most significant — was brought by conservatives who want to reimpose restrictions on abortion pills by making them only accessible in person, reducing the period when a person can take the drugs and getting rid of the FDA’s approval of the generic version.
Carrie Flaxman, senior legal adviser at Democracy Forward who is representing GenBioPro, the manufacturer of the generic mifepristone, which is seeking to intervene in the Texas case to protect abortion pill access, told NOTUS that “it’s not a surprise for a new administration to take a pause in litigation to examine their position.” But, she added, “obviously there’s concern here, given what the administration just did in dismissing the [emergency abortion] case against Idaho,” as well as Trump’s pledge to study the drug’s safety profile.
The Trump administration could attempt to remove itself from the cases or it could choose to argue the plaintiffs don’t have legal standing, rather than defend the merits of the case. Doing so could result in cases being dismissed, but it would still leave the door open for the administration itself to modify regulations on abortion pills, abortion rights advocates warn.
Trump officials “are going to use every lever they have, whether that is taking access away from mifepristone,” said Alexis McGill Johnson, president of Planned Parenthood, the largest provider of reproductive health in the U.S. “We are watching.”
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Oriana González and Jose Pagliery are reporters at NOTUS.
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