Supreme Court abortion case could force Trump to take a public stance on mifepristone

By Tierney Sneed, CNN

(CNN) — The return of abortion to the Supreme Court is testing President Donald Trump’s strategy of avoiding the issue as the anti-abortion advocates grow increasingly frustrated that his administration hasn’t done more to crack down on access to mifepristone, the drug approved to terminate pregnancies.

By leaving intact a Biden-era regulatory regime that made abortion pills easier to obtain, Trump’s administration has mostly kept the issue off the political front burner for both parties. But a conservative appeals court threw wrench in that approach Friday, with a ruling that would add limits to access nationwide by requiring in-person doctor’s visits to obtain the pills.

The ruling from the US 5th Circuit Cout of Appeals is a major win for anti-abortion state officials and advocates who sued the Trump administration to force it to tighten the rules for mifepristone. They argue that allowing the medication to be obtained by online appointments was undermining state laws restricting abortion.

If the 6-3 conservative Supreme Court doesn’t freeze the ruling, as mifepristone manufacturers are now asking, it will limit access to abortion nationwide as the midterms approach.

“What is shocking is that the Trump administration’s inaction has stopped pro-life laws from taking effect, and that they forced several Republican attorneys general to take their battle to the federal courts,” said Kelsey Pritchard, the communications director for Susan B. Anthony Pro-Life America, which supports anti-abortion candidates.

The group on Monday reiterated its calls that US Food and Drug Administration head Marty Makary be fired, which the White House has repeatedly rebuffed.

“It’s just really hard for us to understand how the Trump administration has been so negligent as to leave this policy in place,” Pritchard added.

In lower courts, the Trump administration has tried to thread the needle by pushing back on the lawsuit, brought by Louisiana Attorney General Liz Murrill, for procedural reasons while not defending the safety of the drug outright.

“It’s clear that they do not want to have a ruling taking access to mifepristone away from women across the country before the midterms,” said Sam Bagenstos, who was general counsel for US Department of Health and Human Services during the Biden administration and who defended the FDA rules in court then.

“However,” Bagenstos added, “they are doing everything they can to preserve their ability to take access to mifepristone away from women across the country as soon as they’re out of the woods.”

Even the administration’s silence could be a political problem for Trump as Democrats are already seizing on the case, with the Democratic National Committee accusing Trump in a statement Monday of making “it even harder to get lifesaving reproductive healthcare by banning medication that has been safely used for decades.”

Asked by CNN whether Trump supports the 5th Circuit ruling, the White House did not answer the question directly. Instead, a spokesperson issued a statement pointing to the “Gold Standard Science-based review of mifepristone” that the US Food and Drug Administration is conducting “to address widespread safety concerns about its use.”

The Justice Department has similarly pointed to that review – which is expected to last at least several months – to argue the lawsuit challenging the regulations should be paused.

Standing by regulatory chief under fire

Anti-abortion advocates have grown to suspect the review is just a way for the administration to slow-walk the issue – a claim that the FDA has previously denied. Their concerns were exacerbated by a Wall Street Journal report this weekend indicating Makary had expressed indifference to regulations for mifepristone.

Court briefs from Louisiana noted how a Justice Department lawyer could promise in the proceedings only that parts of the review “’might’ be done by 2027.

“As this case moves along, the current game plan about making this only about procedural issues is going to become more and more untenable,” said Mary Ziegler, a law professor at University of California, Davis, and author of several books about the anti-abortion movement. “The 5th Circuit blew up that strategy.”

Trump, touting his appointment of three of the five justices who overturned Roe v. Wade in 2022, has embraced the way that ruling was framed in the majority opinion by Justice Samuel Alito as returning the issue to the states to decide for themselves.

But medication abortion – the two-pill regimen that terminates a pregnancy – has shown such an approach is easier said than done. The method now makes up some two-thirds of all US abortions – as the number of abortions overall has increased since the 2022 Supreme Court ruling – and now it’s the top target of the anti-abortion movement.

Reviews of mifepristone have found it to be safe. The Supreme Court in 2024 rejected a challenge to the pill’s access brought by anti-abortion doctors, concluding that the physicians hadn’t shown they were being harmed by the current regulations in a way that would warrant a court’s intervention.

Since his reelection, Trump has enacted some policies sought by abortion opponents. But his appointees to lead federal health agencies have not shown interest in implementing regulatory changes that would limit access to medication abortion. Pritchard, the SBA List spokesperson, argued that Trump’s refusal to act on the regulations will dampen turnout by Republicans’ base in the midterms as she pointed to CNN exit polling from 2024.

“If 1-2% of pro-lifers had stayed home in 2024, Trump wouldn’t be president,” she said.

The White House is apparently making the opposite gamble and standing by Makary.

Makary “continues to deliver for the American people, from modernizing the drug approvals process to cracking down on artificial ingredients in our food supply,” White House spokesperson Kush Desai told CNN.

What comes next in the Supreme Court case

The Supreme Court has put the 5th Circuit ruling on a brief “administrative” hold, allowing telehealth abortions to continue, until May 11. Louisiana has been asked to file briefs on Thursday. A DOJ spokesperson did not respond to CNN’s inquiry as to whether it will file briefs by then as well.

Among the options for next steps put forward by the mifepristone manufacturers is the possibility that the Supreme Court could take up the case on the merits now, hearing arguments in the coming weeks.

For now, according to Ziegler, the administration could hold on to the arguments that Louisiana’s lawsuit should be thrown out for procedural reasons and maintain its approach of not spelling out its views on the safety of mifepristone and allowing it to be procured online.

“What I think will get complicated is if the justices have the appetite for anything more,” she said.

However, the Supreme Court itself might not be eager to jump into another abortion dispute that has nationwide implications, after framing its 2023 Roe reversal as putting the policy debate in the hands of state legislators.

The Trump administration is eventually “going to have to put up or shut up about their position regarding whether mifepristone was appropriately approved for termination of pregnancy and whether the in-person dispensing requirement should have been eliminated,” Bagenstos, now a University of Michigan Law School professor, said. “Are they going to have to do that soon? You know, it all depends on what the Supreme Court does.”

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