What Can the FDA Actually Do About the Abortion Pill Ruling?

A shocking ruling out of Texas looks like it could take abortion pills off the market, but all hope is not lost. The Food and Drug Administration has a course of action that will let it comply with the court and still maintain access to the drug.

Texas federal Judge Matthew Kacsmaryk ruled Friday that mifepristone, one of the medications used to induce an abortion, had been improperly approved by the FDA and should be yanked from the U.S. market. Another judge has filed a dueling injunction to keep the drug available, and the Department of Justice has appealed the case.

So as the conflicting law proceedings swirl around, what can the FDA do to keep mifepristone available for the people who need it?

Lawmakers, including Democrats Ron Wyden and Alexandria Ocasio-Cortez and even Republican Nancy Mace, have called for the administration to ignore the ruling and keep mifepristone on the market.

“I believe the Food and Drug Administration has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that,” Wyden said Friday.

But law experts warn against urging the government to “ignore” the ruling, which has no legal precedent.

“Ignoring court rulings is a very serious thing that undermines basic principles of law,” David Cohen, a professor at Drexel University’s Kline School of Law, told The New Republic. While he wouldn’t take ignoring Kacsmaryk’s ruling off the table if the situation became extreme enough, he pointed out that there is another, better option.

Enforcement discretion is a decades-old practice established by a 1985 Supreme Court case that determined administrative agencies can decide when to enforce their own rules, based on which offenses are the most important to target. Cohen compared it to police officers not ticketing everyone who drives a few miles over the posted speed limit, focusing instead on people who drive far too fast.

“It’s a normal part of the American justice system,” he explained. “It’s a problematic part, in some ways, because people can use discretion to go after people of color more. But it is a normal part to weigh the pluses and minuses of different offenses and different levels of offenses and go after the ones that you feel you need to use your resources most for.”

The Biden administration has already indicated that it does not intend to ignore the Texas ruling and will wait for the result of the appeal. Business as usual will continue until the end of the week, when Kacsmaryk’s ruling goes into effect, or until the appellate court rules.

But a judge in Washington state has ruled to maintain the status quo, which directly contradicts the Texas ruling.

The only way for the FDA to comply with both rulings, which are both legally binding, is to use enforcement discretion. In doing so, the agency acknowledges that the approval on mifepristone has been suspended. But the FDA also acknowledges that mifepristone is safe for use and that a better use of agency resources is to go after what Cohen describes as “serious offenders,” or other, nonabortion drugs that are unapproved and risky.

Mifepristone was approved for use in 2000. Since then, it has remained categorized as a high-risk drug, even though there have been more than 100 medical studies proving its safety and it is safer than thousands of other FDA-approved drugs, including penicillin and Viagra. Rachel Rebouché, the dean of Temple University’s law school, pointed out that the FDA has “arguably over-regulated mifepristone.”

But this case isn’t just about whether mifepristone is safe or even about the right to an abortion. It’s also about “deference to a federal agency’s expertise.”

“The FDA’s authority has been undermined by the [Texas] suit and reaffirmed by the [Washington] suit,” Rebouché told TNR. “To take seriously that it ignored risks, risks unsupported by any credible evidence, suggests questions as to what federal courts might decide about other federal agencies’ decisions.”

Even if the appellate court upholds the Texas ruling, enforcement discretion gives both Biden and the FDA the ability to keep mifepristone on the market while still complying with the judicial system. Cohen, Rebouché, and Pitt University law professor Greer Donley were some of the first to raise this option back in February, noting in a Slate article that even if mifepristone loses its approval, things aren’t necessarily as bad as they seem.

“People have been very quick to make this judge have more authority than we should be giving him,” Cohen said of Kacsmaryk.

There’s been a lot of hand-wringing over the lawsuit, well before Kacsmaryk ruled. People are rightly concerned: More than half of all abortions in the United States are done via medication, a two-step process that consists of taking a dose of mifepristone and then a dose of misoprostol.

These drugs can be ordered online and delivered via mail, making them a key resource for people who live in states that have cracked down on abortion access since Roe v. Wade was overturned last summer.

So the thought that one man could take that away is understandably frightening. By raising the alarm, people brought national attention to the issue. The governments of both Washington state and Massachusetts announced plans to stock up on mifepristone in case residents need it. The widespread outrage could also be used to raise donations for abortion rights groups.

But some of the concern also stems from a lack of general understanding about the legal nuances and complexities of the case.

As Cohen, Rebouché, and Donley say in their Slate piece, Kacsmaryk “is not all-powerful.” The FDA still retains the ability to keep mifepristone on the market, and it should flex that power now.

But “to just throw up their hands in the air and say, ‘Nothing we can do, the drug is now banned,’ (a) that’s not a correct reading of the order,” said Cohen. “And (b) that’s giving up.”

Tennessee state Representative Justin Jones is back in the seat Republicans expelled him from after the Democrat stood in solidarity with thousands protesting gun violence. And now, he promises that every single bill he introduces as a “new member” will be focused on advancing the fight that prompted his expulsion: stopping gun violence.

“They told me today I can file 15 bills because I’m now technically a new member. Every one of those bills is going to have to do with commonsense gun laws,” Jones told CNN on Monday. “Every single one of those bills is going to have to do with that because that’s what these young people are begging us to do. And so when I come tomorrow, I’m going to work on that legislation, get it to the speaker’s office, and let’s take action before we adjourn from session.”

Jones was expelled from the Tennessee state legislature last week, before the Nashville Metro Council unanimously voted Jones right back on Monday night. He and colleague Justin Pearson, who are both Black, were expelled by Republicans after standing in solidarity with thousands of Tennesseans protesting gun violence in the aftermath of the Nashville mass shooting that left three children and three adults dead. Their colleague Gloria Johnson, who is white, joined them in the protests but survived an expulsion proceeding by one vote.

Jones and Pearson, if reelected as expected, will be interim representatives until special elections are held for both districts.

Republicans, in their anti-democratic efforts to remove members inconvenient to their ideology, have in effect lost on all counts. By so blatantly disregarding public concern after a horrifying mass shooting, they’ve awakened and mobilized thousands of Tennesseans who may have previously been apolitical, unmotivated, or even conservative. They’ve brought nationwide attention to their misdoings—not just the expulsion of members who stood in solidarity with parents, teachers, and students but also the way they have used their supermajority to make up their own rules, filing bills with no notice to the public and killing other bills on no coherent basis other than their own personal preferences.

Finally, they’ve brought millions of people’s attention and support to Jones, Pearson, and Johnson. And with Jones returning, and Pearson perhaps not far behind, the expulsion is not martyrdom but the start of a new battle against the Republican Party.

Millions of people are now monitoring Republicans’ every single move—and what they choose to do with every one of the 15 gun control bills Jones has promised to file. Any further inaction is all the more blatant in the aftermath of yet another mass shooting in neighboring Louisville, Kentucky. Republicans’ time of lazily waving away bills or making up their own rules has come to an end.

And it was all their own doing.

A Florida Republican lawmaker compared transgender people to “mutants” from the X-Men while debating yet another bill that would curtail LGBTQ rights.

During a debate Monday about House Bill 1421, which would ban gender-affirming care for minors and prohibit trans people from using the bathroom that aligns with their gender, Republican Representative Webster Barnaby went on a strange and vitriolic rant.

“I’m looking at society today, and it’s like I’m watching an X-Men movie,” he said. “It’s like we have mutants living among us on planet Earth.”

“This is the planet Earth, where God created men male and women female!” he continued. “The Lord rebuke you Satan, and all of your demons and all of your imps who come and parade before us.”

Barnaby ended his rant by urging his colleagues to vote for H.B. 1421, which would also make it a third-degree felony for doctors to provide gender-affirming care to trans kids.

Republicans across the country have introduced bills targeting a variety of LGBTQ rights, particularly health care for trans and nonbinary people. Most insist they are protecting children by doing so, but Barnaby went right ahead and said the quiet part out loud: They don’t see trans people as human and worthy of care.

If Republicans really wanted to protect children, they would leave gender-affirming care alone. Such treatments decrease the amount of depression and anxiety that trans and nonbinary teenagers feel, and it makes them less likely to consider suicide. But by passing legislation targeting LGBTQ people, lawmakers demonize the community and put people at risk of real harm.

It’s been just days since Tennessee Republicans brazenly expelled Democratic Representatives Justin Jones and Justin Pearson from the House, but Jones is already on his way back.

On Monday, the Nashville Metro Council voted 36–0 to send Jones back to represent the constituents who already elected him.

Typically, the council would have elected an interim representative, a process that could’ve taken at least four weeks. But members decided to vote to suspend the rules and hold a nomination vote for Jones’s reappointment as the interim representative.

The vote will have Jones back in the state Capitol for House business Monday. The 4:30 p.m. vote came just prior to a House session scheduled for 5 p.m.

Jones, Pearson, and their colleague Gloria Johnson disrupted House proceedings two weeks ago, in solidarity with thousands of children, teachers, parents, and other residents who had been protesting against gun violence outside the state Capitol. The protests erupted after a Nashville school shooting left three children and three adults dead.

Johnson, who is white, survived an expulsion by just one vote. But Jones and Pearson, who are both Black, were expelled.

The Shelby County Commission, home to Memphis, will be hosting a special meeting on Wednesday to vote on an interim representative as well; the vote will essentially be a vote to determine whether the commission will reappoint Pearson back to his seat.

Both seats will still have special elections in the coming months, and Jones and Pearson have expressed their plans to run and officially retake their seats.

Not to be outdone, Republicans are still finding a way to impose their anti-democratic desires on the process. Republican state lawmakers are reportedly threatening to take away government funding for Memphis projects if Pearson is reappointed. The money being threatened is reportedly appropriated for schools and even sports stadiums, like NBA team Memphis Grizzlies’ FedExForum or the University of Memphis’s Simmons Bank Liberty Stadium.

Last week, Tennessee Republicans expelled two Black Democratic lawmakers, Justin Jones and Justin Pearson, for standing in solidarity with the thousands of people demanding gun reform after the Nashville school shooting that left three children and three adults dead. What many have rightfully derided as an anti-democratic action seems to be more of a symptom of a broadly poisoned state legislature, in which Republicans are using their supermajority to make their own rules at whim.

An investigation conducted before last week’s drama from Nashville-based NewsChannel5 revealed how Tennessee Republicans have introduced legislation with no notice to the public, denied roll call votes on bills, and killed bills on the basis that their side apparently sounded louder in voice votes.

In so doing, they’ve shut down even the most inoffensive Democratic-led bills, like one that would direct schools to inform high schools seniors how to register to vote, or another that would study whether college ID cards could be used for voting.

“You have committee chairs single-handedly deciding whether bills live or die. Is that democracy?” NewsChannel 5’s Phill Williams asked Republican House Speaker Cameron Sexton, who responded by insisting that there’s no problem.

Yet a problem there is.

On the college student ID bill, pushed by the now-expelled Representative Jones, Republican Elections and Campaign Finance Subcommittee chair Tim Rudd gavelled the vote as a “No” before the voice vote was even finished. Such brazenness certainly cuts against the already condescending charges made by some Republicans last week that members like Jones and Pearson were complainers and not legislation pursuers.

NewsChannel5 gave Rudd the opportunity to explain why he killed the bill before even hearing the vote. “I don’t know what you’re talking about,” Rudd said twice, with not an ounce of shame of what was clearly seen on camera.

Another bill, advanced by local students, that would’ve directed high schools to guide students on how they could register to vote, was denied a roll call vote by Republican Local Government chair John Crawford on the basis that the committee had already voted on an amendment to the bill.

House rules explicitly state that “a roll call vote shall be taken at the request of the sponsor of the bill or resolution under consideration.”

On the voice vote, it sounded to many in the room like the “Aye’s” had won. Crawford, however, deemed that the “No’s had it.”

“Democracy is dead here in Tennessee as it stands right now,” said House Democratic Caucus Chair Vincent Dixie, who sponsored the bill.

Tori Venable, from the libertarian group Americans for Prosperity, told NewsChannel5 how, with the House voice votes, a vote having “sounded one way, [can go] another way,” all by the unchecked discretion of the Republican majority.

On the student voter registration bill, Dixie had also attempted to file an amendment clarifying some language, but Crawford deemed it “untimely” and unacceptable. When NewsChannel5 asked about the rationale, Crawford talked himself in circles, first claiming that if someone makes a motion and gets a second, then he wouldn’t have a choice but to take it to a vote. When the local reporter pointed out that Dixie had received a second on his motion and Crawford had still denied the motion, Crawford then justified himself by saying, “Well, I said, We don’t take up any untimely filed amendments.’ We hadn’t taken any up to that point all year long.”

Two weeks later, House Speaker Sexton filed a last second amendment to a bill that no one else had seen. In this “untimely” scenario, Crawford gladly gavelled it through.

Contrary to Crawford’s claims, NewsChannel5 noted that their investigation found numerous other cases in which Republican chairs readily accepted late filed amendments the public had never seen.

“This is not democracy as far as I’m concerned,” said Democratic Representative Gloria Johnson, who survived her own Republican-led expulsion threat last week by just one vote.

Less than two weeks before Monday’s mass shooting at a bank in downtown Louisville, the state of Kentucky banned local law enforcement agencies from enforcing federal firearm laws.

The bill makes Kentucky a so-called “Second Amendment sanctuary” and prohibits local, state, or campus authorities from enforcing federal bans or regulations related to firearms, ammunition, or firearm accessories. It applies to any laws or regulations enacted since January 1, 2021.

On March 28, the bill became law after the Republican-led House and Senate overwhelmingly pushed it through, and Democratic Governor Andy Beshear neither signed nor vetoed the legislation, allowing the bill to become law.

And on Monday, at least five people were killed and another eight injured in a mass shooting.*

Kentucky’s law could counter regulations in the Bipartisan Safer Communities Act, passed in the aftermath of the Buffalo supermarket and Uvalde elementary school shootings. Some of the regulations in that law include: banning people from buying guns if they had committed a disqualifying crime while under the age of 18; banning anyone from buying guns if they were found guilty of a domestic violence charge in a romantic relationship (regardless of marital status); and banning people from buying guns on behalf of criminals, terrorists, drug dealers, or people who are prohibited by law from receiving a gun.

Kentucky’s new law could be weaponized to stop such federal regulations on firearms, as well as any future gun control legislation or executive orders from the Biden administration.

Kentucky Republican Representative Savannah Maddox called the bill blocking even modest federal gun regulation “a step in the right direction” but added that “there is more work that needs to be done by our Republican Supermajority.”

So-called Second Amendment sanctuary laws have been deemed unconstitutional by numerous courts, most recently by a federal judge who struck down a similar policy in Missouri.

Meanwhile, the Kentucky legislature has been considering a slew of other pro-gun bills.

House Bill 542, also pushed by Representative Maddox, seeks to prevent colleges from passing any policies that ban people 21 years and older from carrying a concealed weapon on campuses. The bill would have overturned standing policy at every public college in Kentucky. Maddox had quietly tried to sneak the proposal into what was originally a bill about “workforce development.” Maddox has conceded the bill likely does not have enough votes for now to advance further, but it may gain future momentum after a similar bill succeeded and became law in West Virginia.

Another bill Maddox helped introduce in January would lower the age requirement for carrying a concealed gun from 21 to 18. And yet another she co-signed seeks to allow people to carry concealed weapons in schools.

Kentucky is not an anomaly. In Tennessee, a mass shooting occurred amid a concerted effort by state Republicans to loosen gun laws. Before a mass shooting left three children and three adults dead at a Nashville school, state Republicans passed a bill allowing people 21 and older to openly carry handguns without permits. Republicans there are now pushing to allow 18- and 19-year-old residents to carry any firearm—including weapons like AR-15s and shotguns—without permits.

The exact motives of the Louisville shooter are not yet clear. But in a society ravaged daily by mass shootings, in every possible segment of the public square, one would hope that there would be at least some movement toward lessening those incidents: making weapons of killing harder, not easier, to obtain; meaningfully increasing mental health and well-being support; creating a society where community and care, not isolation and individualism, are the norm.

But no, even while Monday’s shooting in Louisville marks the 146th mass shooting in 2023, Republicans seem to be rolling full-speed ahead on running those numbers up.

* This article has been updated with the latest statistics in the Louisville shooting.

Since the bombshell ruling that could potentially take abortion medication off the market, only a handful of Republicans have commented on it—and some not even directly.

Texas federal Judge Matthew Kacsmaryk ruled Friday that mifepristone, one of the medications used to induce an abortion, had been improperly approved by the FDA and should be yanked from the U.S. market. Another judge has already filed a dueling injunction to keep the drug available.*

Republicans typically like to talk about abortion, with many hailing the reversal of Roe v. Wade last summer. In January, the Republican National Committee passed a resolution instructing GOP lawmakers to “go on offense” against abortion access.

But since Friday, there has been barely a peep out of the Republicans on Capitol Hill. As of Monday, countless Democrats have decried the loss of human rights, with Senator Ron Wyden and Representative Alexandria Ocasio-Cortez calling on the FDA to ignore the ruling. But only a handful of Republicans have addressed the ruling.

Senator Cindy Hyde-Smith was one of the first to react. On Friday, she called the ruling “a victory for pregnant mothers & their unborn children” and accused the FDA of “recklessly violating the law & jeopardizing patient safety.” More than 100 scientific studies show that mifepristone is safe.

Susan Collins, the only Republican senator who voted against Kacsmaryk’s confirmation, said Monday she “strongly” disagreed with the ruling.

Representative Tony Gonzalez told CNN on Sunday it was important to have “real discussions on women’s health care, and get off the abortion conversation,” despite the fact that Republican-backed abortion bans have actually created more problems for their health care. Five women are currently suing the state of Texas, saying the state’s abortion restrictions put their lives at risk.

Senators John Cornyn and Ted Cruz didn’t address the ruling directly, but both slammed Wyden and Ocasio-Cortez for urging the FDA to ignore Kacsmaryk’s decision. Cruz said Democrats “don’t care about undermining the rule of law,” which is rich coming from a guy who tried to overturn the 2020 election results.

Surprisingly, Republican Representative Nancy Mace said she also thinks the FDA should ignore the ruling. “This is an FDA-approved drug. Whether you agree with its usage or not, that’s not your decision. That is the FDA’s decision,” she told CNN Monday.

Mace, however, has a record of trying to have it both ways on abortion. Despite repeatedly urging her Republican colleagues to adopt a more “centrist” approach on the issue, she has also consistently voted for abortion restrictions at the federal level.

* This story was updated to clarify the dueling injunction.

The bombshell ruling that could take abortion pills off the national market was based in part on a “study” of anonymous posts on an anti-abortion website.

Texas federal Judge Matthew Kacsmaryk ruled Friday that mifepristone, one of the medications used to induce an abortion, had been improperly approved and should be yanked from the U.S. market. Another judge has already filed a dueling injunction to keep the drug available.*

The lawsuit was filed in November by a coalition of anti-abortion groups and individuals, who specifically chose Kacsmaryk for his history of anti-abortion decisions, arguing that the Food and Drug Administration had improperly approved mifepristone for widespread use more than 20 years ago. More than 100 scientific studies show that mifepristone is safe.

In his ruling, Kacsmaryk cites a study that posits “fourteen percent of women and girls reported having received insufficient information” about the side effects of having an abortion. The study also says that “eighty-three percent of women report that chemical abortion ‘changed’ them—and seventy-seven percent of those women reported a negative change.”

That study analyzed anonymous posts on an anti-abortion website called “Abortion Changes You,” which runs a blog with stories from people who regret having abortions. The sample size is 98 blog posts, but the study authors only analyzed 54 posts and then just cherry-picked quotes from the rest.

“Perhaps this sample might not be reflective of the entire universe of women who have abortions?” suggested legal expert Adam Unikowsky, who clerked for Supreme Court Justice Antonin Scalia, in his Substack “Adam’s Legal Newsletter.”

“This is roughly like reporting a statistic that ‘83% of people are fans of Judge Kacsmaryk’ without mentioning that the entire sample consisted of posters on JudgeKacsmarykFanClub.com.”

What’s even more dangerous is the fact that both the website and the Institute of Reproductive Grief Care, the organization that runs the site, couch themselves in reasonable-sounding language. Founder Michaelene Fredenburg talks repeatedly about the need for a better support system for the men and women grieving pregnancy loss.

This is true. An abortion is a deeply personal choice, and it does not come without an emotional toll. There still seems to be a social taboo about discussing abortions and miscarriages, and people who experience them are often left without a network to support them.

But it should still be a choice. And one man has used a biased study to try to take that away.

* This story was updated to clarify the dueling injunction.

A shooting at a bank in downtown Louisville, Kentucky, has left at least five people dead and eight wounded.

Calls of shots fired at Old National Bank were reported at around 8:30 a.m. Monday morning. At 10:16 a.m., the Louisville Metro Police Department said there was no longer a threat and that the shooter was “neutralized.”

Police have said that five people have died and another six are injured and have been taken to the hospital; among the injured are reportedly two LMPD officers. The death toll of five people includes the shooter.

Kentucky Governor Andy Beshear has said he is on his way to Louisville.

The shooting comes weeks after a school shooting in nearby Nashville, Tennessee, left three children and three adults dead, prompting massive protests at the state Capitol and nationwide. Two Tennessee Democrats, Justin Jones and Justin Pearson, were expelled from the state House after interrupting House proceedings in solidarity with the protesters.

This post has been updated.

Free-speech warrior Elon Musk is suppressing Substack’s own Twitter account, as well as any links to the newsletter company’s website, including newsletters and posts from prominent independent writers such as Judd Legum, Erin Reed, and even Matt Taibbi, one of a select few journalists to whom Musk gave the so-called Twitter Files.

The move appears to be in retaliation for a new feature Substack announced on Wednesday called Notes, which would let users share posts, comments, images, and links in a timeline-style feed—similar to how Twitter functions. The following day, Twitter began blocking Substack writers from being able to embed tweets in their newsletters. Then, on Friday, Twitter began fully blocking users from being able to distribute links to their Substack pages at all.

Twitter users are still able to post links to Substack newsletters, but other users are unable to like, retweet, or reply to those posts, severely limiting the reach of such posts. Moreover, as of this story’s writing, users are unable to like, retweet, or reply to any posts from Substack’s main Twitter account—whether they include a Substack link or not. The account itself appears to still have the ability to tweet, however.

Substack’s founders have said they are “disappointed that Twitter has chosen to restrict writers’ ability to share their work,” adding that writers “deserve the freedom to share links to Substack or anywhere else.”

Musk’s move comes after Twitter welcomed its “2.0” era by releasing much of its source code related to recommendation algorithms, including ones that drive the pitiful “For You” timeline. The code revealed that Twitter had broken down authors into four categories: Elon Musk, “Power User,” Democrat, and Republican; Musk’s posts in particular were being pushed onto Twitter users.

Concurrent to the source code release, Twitter was set to begin phasing out existing verified accounts and welcoming users to obtain blue checks only by paying for them. The plan was set to roll out on April 1 but has yet to come to fruition.

Musk’s attack on Substack is part of pattern, since he bought Twitter in October, to suppress content on an essentially ad hoc basis—from enabling the Indian government to silence dissent to reinstating white nationalists and haphazardly banning journalists.

At the same time, Musk handed over internal company documents to Taibbi and others for a controversial and misleading series of tweet-threads and newsletters about how Twitter was run prior to Musk’s reign. On Friday, Taibbi asked Musk about the apparent attack on Substack and said he did not hear back.

Hours later, Taibbi said he heard from Twitter—likely Musk himself—that Twitter is indeed responding to Substack’s new feature, which it views as a “hostile rival.” Taibbi asked his mysterious source at Twitter how he was supposed to market his work and was given the option to just post his articles on Twitter instead of Substack. In response, Taibbi announced he’s “obviously staying at Substack” and “will be moving to Substack Notes next week.”