A Proposed Expansion to Privacy Law Would Protect People Seeking an Abortion Out of State

The Biden administration proposed expanding the main U.S. health privacy law Wednesday to add more protections for people who seek or provide an abortion.

The Department of Health and Human Services issued a Notice of Proposed Rulemaking through its Office for Civil Rights that prohibits health caregivers and insurers from giving information to state officials trying to investigate, sue, or prosecute someone for seeking or helping provide an abortion.

Under the new rule, the Health Insurance Portability and Accountability Act, or HIPAA, would protect people who get an abortion in their home state or who cross state lines to get the procedure. It would also cover people who help someone access an abortion, such as the health care provider who conducts the procedure or a family member who provides transportation.

Under the rule, if an organization receives a request for private health information, it must also include a “signed attestation that the use or disclosure is not for a prohibited purpose.” The rule is open to public comment for 60 days, after which HHS will decide whether to implement it.

Abortion rights supporters, including lawmakers, have urged the Biden administration for months to expand HIPAA protections to cover abortion access. While Wednesday’s move is a step in the right direction, it may be too little, too late.

Kate Bertash, founder of the nonprofit Digital Defense Fund, which provides digital security for abortion access, pointed out that it’s unlikely law enforcement will signal that they are trying to prosecute someone for giving or getting an abortion.

“Trusting that a legal request for data will clearly be labeled as regarding an abortion feels like a tall order,” she tweeted, pointing out that most lawsuits about abortions are prosecuted under different laws. One such case occurred last summer in Nebraska, where abortion is banned after 21 weeks and six days. A young woman was charged with mishandling human remains after she got an abortion after that cutoff.

The proposed rule also comes amid increasing attacks on abortion access. A federal judge in Texas ruled Friday that the Food and Drug Administration improperly approved mifepristone, one of the drugs used to induce an abortion, and ordered it pulled from the market. The Department of Justice has requested the ruling be stayed pending appeal.

Also last week, Idaho’s Republican governor signed a law banning people from helping others access abortions out of state. Idaho is not the first Republican-led state to try to criminalize traveling out of state for an abortion, although it is the first to codify it into law.

On Wednesday, Florida Republican Representative Randy Fine vehemently defended a bill banning anyone under the age of 18 from being able to attend a drag show.

“If it means erasing a community because you have to target children, then, damn right, we ought to do it!” Fine said.

While Fine didn’t mention what community exactly he is in favor of erasing, the bill in question targets LGBTQ Floridians as a whole, not just drag performers.

Fine argued the bill’s language does not ban drag shows but rather uses language specifically geared toward protecting children. His logic goes, then, if opponents of the bill feel attacked, that’s because they’re in violation of targeting children.

Not so fast, however. On its face, the bill is worded so ambiguously in its focus on the term “adult live performance,” that it would prevent a high school kid from having the ability to watch The Rocky Horror Picture Show or even the musical Hair.

The bill defines “adult live performance” to include “any show, exhibition or other presentation in front of a live audience,” that in any form “depicts or simulates nudity, sexual conduct, sexual excitement, or specific sexual activities,” such as “lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts.”

Consequently, the bill also targets Pride parades and celebrations, by preventing a government entity from issuing permits to organizations that put on such performances. Under the law, any establishment that violates the law would be subject to license suspension or revocation and liable to large fines and a misdemeanor charge. One violation would spur a $5,000 fine; subsequent incidents would spur $10,000 fines.

Ostensibly, authors of the bill are concerned with any conduct deemed “patently offensive to prevailing standards in the adult community of this state as a whole with respect to what is suitable material or conduct for the age of the child present.” Yet the bill leaves open the question of what those standards in the “adult community” even are.

Consequently, while Fine argues that the bill’s language is strictly concerned with shielding children, there’s no clear understanding of what the bill is shielding them from. Fine’s idea of what is “offensive” may be radically different from what millions of other people think. And it does not require any special imagination to foresee radical Florida Republicans using such a bill to target any range of activities related to or hosted by LGBTQ people.

After all, this is the same state party whose members have not been shy about attacking LGBTQ people. Governor Ron DeSantis stripped the Orlando Philharmonic Plaza Foundation of its liquor license for allowing children to attend a Christmas drag show; banned transgender women from playing women’s sports; fired a state attorney for saying prosecutors can’t criminalize personal medical decisions like abortion or transgender health care; and signed the so-called “Don’t Say Gay” bill, among other things.

Meanwhile, other Republican lawmakers have called trans people “mutants” and “demons,” while advancing legislation to ban gender-affirming health care and changing defamation law to make it easier to sue people criticizing bigotry.

The bill Fine was defending has already passed the Senate and is working its way through the House, where Republicans also hold control.

Fine, beyond passionately advancing anti-drag-show bills, is also known for threatening to cut off Special Olympics funding for a Florida community after he wasn’t invited to a Special Olympics fundraising event hosted by a city police department, while a school board member Fine has repeatedly attacked was invited. “I’m not going to jack [expletive] where that whore is at,” Fine said in response to a later invitation to the event. “You guys will have to raise a lot of money given that’s who you want to honor, not the person who got you money in the budget.”

Despite, or perhaps because of, it all, Fine is DeSantis’s leading pick to become the new president of Florida Atlantic University, amid the Florida governor’s efforts to hijack the university system with his friends and donors in order to impose radical conservative policies on college campuses.

It’s been less than a week since Tennessee Republicans expelled Democratic Representatives Justin Jones and Justin Pearson from the House. The Nashville Metro Council reappointed Jones on Monday, having the Democrat miss not even a moment of House business. And now, two days later, the Shelby County Commission has voted to send Pearson back along with him.

On Wednesday, the Shelby County Commission voted 7–0 to send Pearson back to represent the constituents who already elected him. The 13-member commission is made up of nine Democrats and four Republicans; only seven members were present for the vote, all Democrats.

Jones, Pearson, and their colleague Gloria Johnson were targeted by House Republicans last week in wake of the Nashville school shooting that left three children and three adults dead. The three Democrats were repeatedly silenced by Republican leaders, including House Speaker Cameron Sexton, as they tried to speak on the issue of gun violence. Finally, in solidarity with thousands of children, teachers, parents, and other residents protesting against gun violence outside the state Capitol, the trio interrupted House proceedings. The Republicans then led an effort to expel the three on grounds that they had broken “decorum.”

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

Other members with more severe offenses, such as child molestation, have not been expelled or charged with breaches of decorum in the same fashion the three Democrats were. Another member, Justin Lafferty, who once defended the three-fifths compromise, assaulted Jones on the House floor while Republicans advanced the expulsion votes. Lafferty was not found to be breaching decorum.

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

Despite Jones’s and Pearson’s return, and massive public pressure both state- and nationwide, Republicans have still reportedly been trying to find a way to impose their anti-democratic desires on the process. Republican state lawmakers have allegedly been toying with taking away government funding for Memphis projects if Pearson is reappointed. The funds specifically are reported to have been set aside for schools and sports stadiums, like NBA team Memphis Grizzlies’ FedExForum or the University of Memphis’s Simmons Bank Liberty Stadium.

Attorneys representing Jones and Pearson sent a letter to Sexton on Monday, however, warning Republicans of potential constitutional violations if they dig in their heels.

“The world is watching Tennessee,” they wrote. “Any partisan retributive action, such as discriminatory treatment of elected officials, or threats or actions to withhold funding for government programs, would constitute further unconstitutional action that would require redress.”

Twitter faces a possible $33 billion in fines, more than the entire company is reportedly worth, in Germany, for failing to remove hate speech. Meanwhile, owner Elon Musk continues to insist hate speech isn’t increasing on the platform.

Germany’s Federal Justice Office, or BfJ,  announced on April 4 that it had begun the process to fine Twitter for repeatedly failing to address complaints about content that violates Germany’s Network Enforcement Act. Known as NetzDG, the law requires social media platforms with more than two million followers to remove content that includes hate speech, abuse, threats, and antisemitism. Under the law, each individual case can result in a fine of up to 50 million euros.

More than 600 cases of illegal hate speech on Twitter have been reported to the BfJ, according to TechCrunch. The German government is only acting on a handful, but if it expands its investigation to all of them, the fines could reach an eye-popping total of 30 billion euros, or about $33 billion.

Musk bought Twitter in October for $44 billion, but in a recent email to employees, he said the company is worth just $20 billion. Since taking over, Musk has scrambled to cut costs and increase revenue. This apparently includes letting everyone come back on Twitter, including Nazis, and purchase verification badges; firing 75 percent of staff; selling everything in the company’s San Francisco headquarters; and just not paying rent.

Hate speech has also flourished on Twitter since Musk took the reins. Aside from the potential German fines, a report released in December by Media Matters and GLAAD analyzed tweets from nine prominent right-wing figures and accounts and found that in the first month under Musk’s leadership, there was a 1,200 percent increase in retweets of posts that use the word “groomer,” a homophobic slur. The social media research group National Contagion Research Institute found that in the 12 hours after Musk bought Twitter, use of the n-word increased almost 500 percent.

But in a bizarre Wednesday interview with the BBC, Musk insisted that hate speech has not increased on Twitter. “You don’t know what you’re talking about,” he told reporter James Clayton when asked about the abusive language.

“I hate him passionately,” Tucker Carlson once wrote about twice-impeached and now criminally indicted former President Donald Trump. But on Tuesday night, the Fox host bent over backward, forward, and sideways to try cleaning up his errant comments on the radical leader of the Republican Party. Carlson hosted the suddenly “sensible and wise” Trump in an hour-long special, in which the Fox host barely got a word in, giving the former president open rein, perhaps as an apology gift.

In fact, most of Carlson’s presence was felt during interluding clips of him lobbing any favorable adjective he could to describe Trump.

“His descriptions of a meeting with Chinese President Xi Jinping at Mar-a-Lago were remarkably nuanced and even affectionate,” Carlson said of Trump.

On the actual substance of the interview, it was fairly standard Trump form: incoherent ramblings ranging from self-aggrandizing fantasies to geopolitical grievances.

For instance, apparently, when Trump was arraigned last week, people who worked at the courthouse had tears streaming down their faces as they offered assurances to him: “2024, sir.”

Carlson chummily giggled at Trump’s joke that the Wharton School of Finance didn’t teach him about being arraigned.

Trump, who has been debased by numerous Fox anchors including Carlson himself, cited numerous Fox personalities defending his innocence amid being arraigned for 34 counts of falsifying business records while coordinating a hush-money payment to Stormy Daniels, with whom he allegedly had an affair.

On global politics, Trump had glowing praises for rulers for whom, if any Democrat had shared equal sentiments, Fox would sic every host and anchor onto them for months.

“They’re great people,” Trump said on Saudi Arabia—a state guilty of an array of human rights abuses, no less of killing Washington Post journalist Jamal Khashoggi.

The Chinese president, Trump said, was not only “brilliant” but also someone you could never find a good casting for in Hollywood.

Trump also went out of his way, while offering prefaces for why he shouldn’t say it, to talk about Xi’s “beautiful female interpreter.”

Russian President Vladimir Putin, meanwhile, is “very smart,” despite having a “bad year,” not having taken over all of Ukraine. “And what are we going to do? Because Biden is so committed to Ukraine,” he continued.

Trump, however, insisted that he stood up to Putin’s desires, on Ukraine and the Nord Stream 2 pipeline. “I was the worst thing that ever happened to him,” Trump said.

Amid all this, Trump said his biggest problem was not any other nation but “sick radical people” who live within the United States.

“We’re all pretending we’ve got a lot to show for [Trump’s presidency], because admitting what a disaster it’s been is too tough to digest,” Carlson wrote in a text message, just two days before the January 6 attack on the Capitol. “We are very, very close to being able to ignore Trump most nights. I truly can’t wait.”

Instead, two years later, Carlson is back to pretending.

Elon Musk insisted that hate speech and misinformation have decreased on Twitter since he took over, in a bizarre and rambling interview with the BBC.

The Tesla CEO bought Twitter in October. Since then, all hell seems to have broken loose, with Musk firing about three-quarters of all employees, gutting content moderation guidelines, and scrambling to find funds. He admitted to the BBC that it’s been a “rollercoaster” and “quite painful.”

But when BBC reporter James Clayton asked about an increase in hate speech on Twitter, Musk became defensive. He repeatedly asked Clayton to give him a specific example, and when the reporter couldn’t, Musk said, “You don’t know what you’re talking about.”

“You just lied,” Musk said.

It’s disappointing that Clayton was unprepared to offer examples, considering there are so many—including on Musk’s personal Twitter profile. A report released in December by Media Matters and GLAAD analyzed tweets from nine prominent right-wing figures and accounts and found that in the first month under Musk’s leadership, there was a 1,200 percent increase in retweets of posts that use the word “groomer,” a homophobic slur.

The social media research group National Contagion Research Institute found that in the 12 hours after Musk bought Twitter, use of the n-word increased almost 500 percent. Musk has let Nazis back on Twitter, given blue verification check marks to the Taliban, and shared transphobic memes and Nazi photos himself.

Musk also said there is less misinformation on Twitter since he took over, due in part to his efforts to crack down on automated accounts. But a study by the WHO-backed fact-checking organization Health Feedback found that “misinformation superspreaders,” or accounts that repeatedly share misinformation, have seen a major rise in popularity since Musk took over.

When asked if he prioritizes free speech on Twitter over facts, Musk—a self-described “free speech absolutist”—countered with what he probably thought was a real zinger: “Who’s to say something is misinformation?” Considering his own Twitter profile is rife with conspiracy theories and misinformation, he may not know.

During the interview, Musk insisted Twitter was close to being “cash-flow positive,” despite reportedly telling employees in March that the company is now worth $20 billion, less than half what he paid for it. He also claimed that his dog is now the company CEO.

So maybe things will run a little more smoothly now.

Harvard’s Graduate School of Arts and Sciences announced Tuesday it will be renamed for a Republican billionaire megadonor who is one of Ron DeSantis’s biggest financial backers.

Hedge fund CEO Ken Griffin graduated from Harvard in 1989. The school praised his $300 million gift, saying it will help it advance its research and expand its ability to provide students with financial aid.

But people were confused by the fanfare over his gift and the decision to give Griffin such a prominent reward. Harvard’s endowment fund is $53.2 billion, the largest academic endowment in the world, so Griffin’s gift is a drop in the bucket for them.

But more than the money, people are pretty mad about Griffin himself. The billionaire is currently the third-biggest individual political donor in the country, having given a total of $71,050,000 to exclusively conservative causes, according to OpenSecrets.

A report published in November by the group Americans for Tax Fairness found that Griffin gave $66.1 million to several Republican super PACs and candidates during the 2022 midterm elections. That election cycle was the most expensive midterms ever, as billionaires rushed to exert influence over the outcomes.

Griffin actually was one of Barack Obama’s biggest fundraisers when he first ran for election in 2008. But by 2012, Griffin had flipped, transferring his vote and his money to then–Republican nominee Mitt Romney.

He alleged the Obama administration had “embraced class warfare as being politically expedient” and argued that wealthy people had “insufficient influence” in politics.

Most recently, Griffin has thrown his weight behind Ron DeSantis. He was the Florida governor’s biggest donor during the 2022 election, giving $5 million to DeSantis’s reelection campaign.

Griffin has repeatedly said he would “love” to see DeSantis run for president in 2024. During a March interview with Bloomberg, Griffin said he disagreed with DeSantis on a few points, such as the governor’s going after Disney for criticizing Florida’s “Don’t Say Gay” law or spreading doubt about Covid-19 vaccines.

To be clear, Griffin didn’t say he disagreed with DeSantis’s motivations. Instead, Griffin said he thought the Disney retaliation was government overreach and the vaccine disinformation was poorly worded and framed.

Meanwhile, DeSantis has come under fire recently for going after educational freedom in Florida. He has promised to defund diversity, equity, and inclusion programs on college campuses; limited what can be taught or read in schools; and even had his allies force out the president of a liberally minded college.

In March, a first-grade concert in Wisconsin was barred from singing “Rainbowland” by Miley Cyrus and Dolly Parton. Now the school district has placed a teacher who complained about the ban on administrative leave. The district has not clarified when the teacher will be allowed to return or what repercussions she may face next.

Heyer Elementary first-grade teacher Melissa Tempel had been working with other teachers to prepare for a spring music concert. The teachers decided to include Cyrus and Parton’s “Rainbowland” in the set list. But school administrators, including the principal, barred the song’s inclusion, citing a district-wide policy on items “that may be considered political, controversial, or divisive.” Tempel tweeted about the ban, prompting massive public attention on the Waukesha School District.

And then, last week, Tempel was placed on administrative leave. She had come to school like any other day. But unlike any other day, district officials were waiting to stop and remove her from the classroom.

The school board plans to meet Wednesday. The agenda includes items limited to the “executive session” related to “specific personnel problems,” which suggests closed-door discussions about Tempel’s fate. Parents from the district have found this secrecy as well as the uncertainty around Tempel’s leave period or the reason for it in the first place to be indicative of district officials’ broader lack of transparency.

Members of the Alliance for Education in Waukesha, or AEW, a group of parents and community members, are inviting the public to attend a public singalong to “Rainbowland” and the school board meeting to “show support for an inclusive Waukesha.”

“I am deeply concerned that Ms. Tempel was removed from her classroom for standing up for them and what she knows is right,” said a parent from Tempel’s class.

“Melissa is a wonderful teacher, and the fact that the district did not address this issue with her and with the school principal directly, but instead called her out in a communication to the entire district community is not only wrong but juvenile,” said another Heyer elementary parent.

Tempel’s administrative leave is just the latest in what parents and teachers say is a school district’s overzealous enforcement of Board Policy 2240, Controversial Issues in the Classroom, which sets guidelines for when the district would “permit” a so-called “controversial issue” to be introduced in the classroom. The broad policy has gone as far as banning rainbow designs from school decor or teacher lanyards because of the association with the LGBTQ community.

The teachers’ initial planning for the spring concert seemed fairly innocent. After some back and forth, Tempel and her colleagues found Parton and Cyrus’s “Rainbowland” to pair well with other songs in the lineup, like “What a Wonderful World,” “Here Comes the Sun,” and “It’s a Small World.”

“Livin’ in a rainbowland, where everything goes as planned, and I smile, ’cause I know if we try, we could really make a difference in this world,” Parton and Cyrus sing in their chart-leading ballad.

But as the teachers soon discovered, the show would not go on as planned.

The school principal and another school administrator reviewed the song and decided that it “could be deemed controversial” in relation to Board Policy 2240. Waukesha School Board President Dr. Kelly Piacsek and Superintendent Dr. Jim Sebert have insisted that they did not “insert themselves into the song selection.” Rather, they framed the process as decisions made by Heyer Principal Mark Schneider and the school’s music teacher. Piacsek and Sebert claim they only reviewed and upheld decisions made by Heyer’s staff.

But members of AEW argue the officials are blaming school staff for a broader chilling atmosphere in the district that is being conducted, namely through the advancement of policies like 2240.

Curiously, Piascek and Sebert, while insisting they were not involved in the decision to ban the song, took it upon themselves to explain the exact rationale of why it was banned. They explained that the “subject matter addressed by the song’s lyrics” was not in line with the “the age and maturity level of the students.”

The district has not clarified exactly what is inappropriate about Cyrus and Parton’s song, nor have they clearly delineated why Tempel has been placed on forced leave. Attempts were made to reach Superintendent Sebert, Deputy Superintendent Joe Koch, School Board President Piascek, and Heyer Elementary Principal Schneider, but The New Republic did not hear back from any by publication time.

“This Superintendent and Board began the march toward marginalization last year, and it has only served to stoke fear and sow distrust in the  Waukesha Community, which has yielded a pattern of bullying against anyone who calls out the district’s bias and harassment,” the AEW said in a statement Tuesday. “Now Waukesha is a national laughingstock, and the blame for that falls squarely to the feet of the district’s leadership, not those who have the courage to hold them accountable, like Ms. Tempel.”

Tennessee’s Republican governor said Tuesday he would support gun reform legislation, pulling an abrupt 180 on gun control legislation as his state still reels from a school shooting.

A shooter opened fire at the Covenant School in Nashville two weeks ago, killing three children and three adults and wounding several others. State Republicans, including Governor Bill Lee, have insisted that there is nothing they could have done or could do differently to prevent such a tragedy. When Democrats agitated for gun reform on the floor of the state House of Representatives, Speaker Cameron Sexton moved to expel two of them from the legislature.

Lee finally struck a different tune Tuesday, during an appearance at the Midtown Hills police precinct, which responded to the Covenant School shooting. “I think everyone—leadership from speakers as well as other leaders—have expressed a desire to do something and move forward,” he said. “I have challenged them to bring forward ideas and subsequently met with those leaders. I do believe we should get it done during this session.”

Lee did not offer any specific suggestions of what those laws, including a red flag law, should entail. Here are some places he could look for ideas: the red flag law that Tennessee failed to pass in 2020 or the package of gun reform measures that state Democrats introduced last week.

One of those bills is for extreme risk protection, another name for a red flag law. The measure would let families and law enforcement intervene when a person poses a significant threat to others or themselves.

The Tennessee Senate Judiciary Committee has said it will not hear any firearm legislation for the rest of the year, but Lee urged the legislature to pass some kind of reform this session.

A few hours after Lee’s speech, Sexton responded by announcing that “the House is willing to work toward bipartisan solutions to protect all children at their schools, in their communities, and inside their homes.” Though he did not specify a red flag law or say the word “guns,” his statement was in response to Lee’s suggestion for this legislation.

Lee’s speech was only his second public appearance since the shooting, and it was markedly different from his first one. In a video message posted on Twitter just days after the attack, Lee said he had lost two close friends in the shooting, but it was not yet time for change.

“I understand that there is pain; I understand the desperation to have answers, to place blame, to argue about a solution that could prevent this horrible tragedy,” he said. “There will come a time to discuss and debate policy. But this is not a time for hate or rage. That will not resolve or heal.”

His pivot comes after two weeks of turmoil in and national scrutiny of the Tennessee state legislature. Thousands of students marched two separate times on the Capitol building demanding gun control. They were joined by three Democratic lawmakers, two of whom were subsequently expelled by their Republican colleagues for allegedly breaking House decorum rules.

One of the expelled lawmakers, Justin Jones of Nashville, was reinstated Monday by his district’s Metro Council. He is now technically a “new member” and can file up to 15 bills. Jones promised Monday night that all 15 bills he files will be on gun control.

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.”