Highlights:
December 2020: The Trump administration asked Judge Chuang to reinstate the FDA rule, but he refused.
January 2021: The Supreme Court Reinstated Trump Administration Rule Requiring People Seeking Medication Abortions To Receive Drugs In Person. According to the Washington Post, “The Supreme Court on Tuesday agreed with the Trump administration and reinstated requirements that women seeking medication abortions receive the drugs in person at a clinic, setting aside a judge’s ruling that protocol was dangerous during the coronavirus pandemic. The administration sought to reinstate rules by the Food and Drug Administration that women pick up the abortion pills at a medical facility — rather than receive them by mail or delivery — even though there is no requirement they take the medication in such a setting. Most take the pills that end a pregnancy in its early stages at home.” [Washington Post, 1/12/21]
December 2020: Trump Administration Solicitor General Asked The Supreme Court To Intervene In Dispute Over Maryland Judge’s Nationwide Order. According to the Los Angeles Times, “A divided Supreme Court on Tuesday granted an appeal from Trump administration lawyers and restored a controversial abortion rule that requires women who want medication to end an early pregnancy to travel to a hospital or clinic to pick up the pills, despite the COVID-19 pandemic. The justices, by a 6-3 vote, set aside a Maryland judge’s nationwide order that waived the in-person pickup rule on the grounds that it was medically unnecessary and posed a health risk for women during the pandemic. All six conservatives voted in the majority, and the three liberals in dissent. […] A medical group representing 60,000 obstetricians and gynecologists sued last year to challenge the in-person pickup rule as nonsensical during the pandemic, saying a woman could consult with a doctor via telemedicine but nonetheless was required to travel to a hospital to pick up pills that she could take at home. But the Trump administration continued to fight against relaxing the rule, even temporarily. Last month, Jeffrey B. Wall, the acting solicitor general, urged the court to intervene and insisted there was no evidence “that requiring in-person visits as part of providing an abortion would substantially impede women’s access to abortion during the pandemic.” [Los Angeles Times, 1/12/21]
The FDA Refused To Waive Regulations On Abortion Medication, Which Required Patients To Receive Medication In-Person. According to VICE, “When Donald Trump used ‘two very big words’ to declare a national emergency over the novel coronavirus on Friday, he bragged about giving his top health official the ‘ability to waive laws to enable telehealth’ during the pandemic. But it appears that the president’s latitude will not apply to medication abortion care, a federal agency confirmed to VICE. People who want to end their pregnancies will have to navigate the same restrictions as always, which will become all the more complicated in a pandemic environment. While telemedicine abortion specifically enables providers to prescribe abortion pills from a distance, longstanding federal regulations require that clinics dispense mifepristone, one of the two drugs commonly used together in medication abortions, in person—meaning the drugs can’t be picked up at a pharmacy or sent in the mail. An abortion patient can choose to take their medication at home, but they can’t get it without leaving their home. These federal rules prevent people from staying home and flattening the pandemic curve, an action that saves lives.” [VICE, 3/19/20]
May 2020: Several Reproductive Health Groups Sued The FDA Over The Rule, Stating That It Was Unconstitutional For The Agency To Maintain The Rule For The Abortion Drug While Waiving It For Other Drugs In Light Of The Pandemic. According to CNN, “The Trump administration's challenge comes after several reproductive health groups, represented by the American Civil Liberties Union, sued the FDA in May over the long-standing requirement, arguing that it was unconstitutional for the agency to maintain the rule for the abortion drug while lifting it for other drugs in light of the pandemic. ‘By making life-threatening viral exposure risks a condition of treatment for medication abortion and miscarriage care, the FDA's continued maintenance of the Mifepristone In-Person Dispensing Requirement jeopardizes the safety of patients, clinicians, and the public at large, with no countervailing benefit—and with particularly severe implications for low-income people and people of color, who comprise a disproportionate share of impacted patients and who are already suffering and dying from COVID-19 at substantially higher rates,’ the ACLU wrote at the time. A lower court sided with the groups and temporarily blocked the requirement in July, and a federal appeals court denied the administration's efforts to overturn the ruling earlier this month.” [CNN, 8/26/20]
July 2020: U.S. District Judge Order Temporarily Prohibited FDA From Enforcing Rule. According to the Associated Press, “Chuang’s order in July temporarily prohibits the U.S. Food and Drug Administration from enforcing the ‘in-person requirements’ for dispensing the drug mifepristone during the pandemic. The judge concluded that the rule imposes a ‘substantial obstacle’ to abortion patients and likely is unconstitutional under the pandemic’s circumstances. Justice Department attorneys appealed Chuang’s July 13 order. In October, the U.S. Supreme Court ruled that the government could present a request to dissolve or modify the injunction based on new evidence and directed Chuang to rule on it within 40 days. The Supreme Court did not rule on the merits of Chuang’s decision.” [Associated Press, 12/10/20]
The Trump Administration Asked The Supreme Court To Reinstate A Rule Mandating Abortion Seekers To Visit Health Care Providers In Person To Acquire One Of The Pills For Medication Abortions, After Lower Courts Blocked The Rule During The Coronavirus Pandemic. According to CNN, “The Trump administration is asking the Supreme Court to reinstate a rule requiring abortion seekers to visit health care providers in person to acquire one of the pills for medication abortions, after lower courts blocked the rule during the ongoing coronavirus pandemic. The escalated fight surrounding the pills -- which the Food and Drug Administration does not require to be taken while with the health care provider -- is the latest development in a pandemic-era clash over abortion access that has increasingly manifested as a battle of regulations.” [CNN, 8/26/20]
October 2020: The Supreme Court Ruled Trump Administration Could Present To The Judge A Request To Dissolve Or Modify The Injunction. According to the Associated Press, “Chuang’s order in July temporarily prohibits the U.S. Food and Drug Administration from enforcing the ‘in-person requirements’ for dispensing the drug mifepristone during the pandemic. The judge concluded that the rule imposes a ‘substantial obstacle’ to abortion patients and likely is unconstitutional under the pandemic’s circumstances. Justice Department attorneys appealed Chuang’s July 13 order. In October, the U.S. Supreme Court ruled that the government could present a request to dissolve or modify the injunction based on new evidence and directed Chuang to rule on it within 40 days. The Supreme Court did not rule on the merits of Chuang’s decision.” [Associated Press, 12/10/20]
October 2020: The Supreme Court Deferred Any Substantive Ruling. According to the Associated Press, “Since July, Chuang’s order has temporarily prohibited the U.S. Food and Drug Administration from enforcing the requirement that a woman visit a hospital, clinic or medical office to obtain the drug mifepristone during the pandemic. The FDA approved mifepristone to be used in combination with a second drug, misoprostol, to end an early pregnancy or manage a miscarriage. In October, the Supreme Court allowed women to continue getting the abortion pill by mail, but deferred any substantive ruling.” [Associated Press, 12/15/20]
The Trump Administration Asked U.S. District Judge Chuang To Reinstate The FDA Rule By Suspending The Injunction. According to the Associated Press, “A federal judge in Maryland has denied the Trump administration’s request to reinstate a rule that would require women to visit a hospital, clinic or medical office to obtain an abortion pill during the COVID-19 pandemic, noting that public health risks for patients only have grown worse. U.S. District Judge Theodore Chuang, who agreed to suspend the rule in July, refused Wednesday to lift or limit the scope of that order. He rejected the administration’s argument that economic conditions and patients’ access to medical facilities, childcare and transportation have improved sufficiently to warrant dissolving the preliminary injunction.” [Associated Press, 12/10/20]
December 2020: U.S. District Judge Chuang Refused To Lift The Order And Reinstate The Rule. According to the Associated Press, “A federal judge in Maryland has denied the Trump administration’s request to reinstate a rule that would require women to visit a hospital, clinic or medical office to obtain an abortion pill during the COVID-19 pandemic, noting that public health risks for patients only have grown worse. U.S. District Judge Theodore Chuang, who agreed to suspend the rule in July, refused Wednesday to lift or limit the scope of that order. He rejected the administration’s argument that economic conditions and patients’ access to medical facilities, childcare and transportation have improved sufficiently to warrant dissolving the preliminary injunction.” [Associated Press, 12/10/20]
May 2017: Trump Appointed Teresa Manning As Deputy Assistant Secretary For The Office Of Population Affairs. According to the Washington Post, “Teresa Manning — an antiabortion activist in charge of the Health and Human Services Department’s family planning programs — resigned her post Friday, according to a department spokeswoman. Manning, who served as deputy assistant secretary for the Office of Population Affairs, has spent much of her career fighting abortion and has publicly questioned the efficacy of several popular contraception methods. Her job included overseeing the Title X program, which provides family-planning funding for about 4 million poor Americans or those without health insurance. […] Manning, who was appointed by President Trump last May, formerly lobbied for the National Right to Life Committee and worked as a legislative analyst for the Family Research Council. She was one of several antiabortion activists and leaders Trump has picked for key positions at the agency.” [Washington Post, 1/13/18]
Manning Oversaw The Title X Program, Which Provided Family Planning Funding For 4 Million Americans. According to the Washington Post, “Teresa Manning - an anti-abortion activist in charge of the Health and Human Services Department's family planning programs - resigned her post Friday, according to a department spokeswoman. Manning, who served as deputy assistant secretary for the Office of Population Affairs, has spent much of her career fighting abortion and has publicly questioned the efficacy of several popular contraception methods. Her job included overseeing the Title X program, which provides family-planning funding for about 4 million poor Americans or those without health insurance. In an email Friday evening, HHS spokeswoman Caitlin Oakley confirmed Manning's resignation but did not provide a reason for her abrupt departure.” [Washington Post, 1/13/18]
Washington Post: Manning “Spent Much Of Her Career Fighting Abortion And Has Publicly Questioned The Efficacy Of Several Popular Contraception Methods.” According to the Washington Post, “Teresa Manning — an antiabortion activist in charge of the Health and Human Services Department’s family planning programs — resigned her post Friday, according to a department spokeswoman. Manning, who served as deputy assistant secretary for the Office of Population Affairs, has spent much of her career fighting abortion and has publicly questioned the efficacy of several popular contraception methods. Her job included overseeing the Title X program, which provides family-planning funding for about 4 million poor Americans or those without health insurance. [Washington Post, 1/13/18]
Manning Had Previously Worked For National Right To Life And Family Research Council. According to the Washington Post, “‘Manning, who was appointed by President Trump last May, formerly lobbied for the National Right to Life Committee and worked as a legislative analyst for the Family Research Council. She was one of several antiabortion activists and leaders Trump has picked for key positions at the agency. [Washington Post, 1/13/18]
Washington Post: Manning “Has Repeatedly Objected To The Use Of RU-486, Or Mifepristone” According to the Washington Post, “‘ Like many conservatives who oppose abortion rights, Manning has repeatedly objected to the use of RU-486, or mifepristone, which is often used with misoprostol to trigger an abortion during the early stages of a pregnancy, as well as the morning-after pill.” [Washington Post, 1/13/18]
Trump-Appointed Judge Matthew Kacsmaryk Was Expected To Rule On Alliance Defending Freedom’s Request For A Preliminary Injunction To Stop The Sale And Distribution Of Mifepristone. According to Bloomberg Law, “Trump-appointed Judge Matthew Kacsmaryk is expected to rule soon on the Alliance Defending Freedom’s request for a preliminary injunction stopping the sale and distribution of mifepristone, a drug used as part of a regimen to end a pregnancy within the first 10 weeks. Such a ban, advocates say, would push health groups to guide patients and doctors to alternative ways to access reproductive services.” [Bloomberg Law, 2/10/23]
Kacsmaryk Was Deputy General Counsel For First Liberty Institute A Christian Conservative Litigation Organization Known For High Profile Culture War Cases. According to Rolling Stone, “Before he was installed in a lifetime position on the federal bench, Kacsmaryk was the deputy general counsel for First Liberty Institute, a Christian conservative litigation shop known for taking on high-profile culture war cases. (Lawyers for First Liberty were involved in two cases before the Supreme Court last year, including one concerning a football coach who claimed he was discriminated against for his midfield prayers. The court ruled in the coach’s favor.)” [Rolling Stone, 1/18/23]
Two Months Before Kacsmaryk’s Nomination, He Lobbied The White House To Include Protections For Religious Objections And Moral Convictions Against Requirements For Employers To Cover Contraception. According to the New York Times, “One particular area of interest for First Liberty was birth control. Two months before Kacsmaryk’s initial nomination to the bench, he was at the White House for a meeting with Trump administration budget officials, making the case that regulations requiring employers to cover contraception should protect objections “on the basis of ‘religious beliefs’ or ‘moral convictions,’” according to his written responses to the Judiciary Committee.” [New York Times, 2/25/23]
Kacsmaryk Was A Federalist Society Member In Law School. According to the New York Times, “In the fall of 2000, after Griffith gave birth, Kacsmaryk returned to law school at the University of Texas and focused his attention on the legal foundations for abortion rights. Rep. Chip Roy (R-Tex.), who attended meetings of the conservative Federalist Society in law school with Kacsmaryk, said the two would regularly talk about Roe v. Wade and what they viewed as Supreme Court overreach on abortion.” [New York Times, 2/25/23]
Rolling Stone: Kacsmaryk “Once Argued Against Same-Sex Marriage, No-Fault Divorce, Birth Control, Abortion And Sex Outside Of Marriage — All In The Same Op-Ed.” According to Rolling Stone, “A 46-year-old father of five, Kacsmaryk was nominated by Donald Trump and confirmed by a slim majority of Republican senators in 2019, despite alarms raised about his writing (he once argued against same-sex marriage, no-fault divorce, birth control, abortion and sex outside of marriage — all in the same op-ed) and his work with First Liberty. At the time, the Leadership Conference on Civil and Human Rights warned Kacsmaryk is a ‘culture warrior who[se] … record reveals a hostility to LGBT equality and to women’s health,’ adding ‘he would not be able to rule fairly and impartially in cases involving those issues.’” [Rolling Stone, 1/18/23]
Kacsmaryk Said That Recognizing Same-Sex Marriage Would Send The Country “On A Road To Potential Tyranny.” According to the New York Times, “By the time Kacsmaryk sat for his Senate confirmation hearing in 2017, the Democrats on the Judiciary Committee had learned about many of his socially conservative convictions. One by one, the senators quizzed Kacsmaryk on the commentary and legal briefs he’d signed in recent years. Recognizing same-sex marriage will send the country ‘on a road to potential tyranny.’ The push for ‘so-called marriage equality’ has been a ‘complete abuse of rule of law principles.’ The sexual revolution ushered in a world where an individual is ‘an autonomous blob of Silly Putty unconstrained by nature or biology’ and where ‘marriage, sexuality, gender identity and even the unborn child must yield to the erotic desires of liberated adults.’ In a crisp navy blue suit, Kacsmaryk addressed each quote in a calm, measured voice. During the hearing and in his written responses to senator’s questions, he stressed that he could preside fairly over any matter, regardless of his past statements.” [New York Times, 2/25/23]
Kacsmaryk Described Being Transgender As A “Mental Disorder.” According to Rolling Stone, “Since being sworn in, Kacsmaryk has proven to be precisely the ideologue his critics feared. In the last few months alone, he has issued an opinion attacking the right to birth control (an opinion, Vox’s Ian Millhiser noted, that was ‘riddled with obvious legal error’), ordered the Biden Administration to reinstate Trump’s ‘Remain in Mexico’ policy (a similar ruling he made in 2021 was reversed by the Supreme Court last year), and issued a decision that found that two Texas doctors had standing to challenge a Health and Human Services’ policy prohibiting discrimination against transgender patients. (Before he was a judge, Kacsmaryk described being transgender as a ‘mental disorder.’)” [Rolling Stone, 1/18/23]
Kacsmaryk: “Marriage, Sexuality, Gender Identity And Even The Unborn Child Must Yield To The Erotic Desires Of Liberated Adults.” According to the New York Times, “By the time Kacsmaryk sat for his Senate confirmation hearing in 2017, the Democrats on the Judiciary Committee had learned about many of his socially conservative convictions. One by one, the senators quizzed Kacsmaryk on the commentary and legal briefs he’d signed in recent years. Recognizing same-sex marriage will send the country ‘on a road to potential tyranny.’ The push for ‘so-called marriage equality’ has been a ‘complete abuse of rule of law principles.’ The sexual revolution ushered in a world where an individual is ‘an autonomous blob of Silly Putty unconstrained by nature or biology’ and where ‘marriage, sexuality, gender identity and even the unborn child must yield to the erotic desires of liberated adults.’ In a crisp navy blue suit, Kacsmaryk addressed each quote in a calm, measured voice. During the hearing and in his written responses to senator’s questions, he stressed that he could preside fairly over any matter, regardless of his past statements.” [New York Times, 2/25/23]
Kacsmaryk: “The Democratic Party’s Ability To Condone The Federally Sanctioned Eradication Of Innocent Human Life Is Indicative Of The Moral Ambivalence Undergirding This Party.” According to the New York Times, “‘The Democratic Party’s ability to condone the federally sanctioned eradication of innocent human life is indicative of the moral ambivalence undergirding this party,’ Kacsmaryk wrote, endorsing a Republican Party platform that would grant a fetus the full legal protections of a person. Democrats, he added, had ‘facilitated the demise of America’s Christian heritage’ and mounted a ‘contemptuous assault on the traditional family.’” [New York Times, 2/25/23]
Kacsmaryk Attacked The Democratic Party In An Op-Ed For Facilitating “The Demise Of America’s Christian Heritage.” According to the New York Times, “‘The Democratic Party’s ability to condone the federally sanctioned eradication of innocent human life is indicative of the moral ambivalence undergirding this party,’ Kacsmaryk wrote, endorsing a Republican Party platform that would grant a fetus the full legal protections of a person. Democrats, he added, had ‘facilitated the demise of America’s Christian heritage’ and mounted a ‘contemptuous assault on the traditional family.’” [New York Times, 2/25/23]
April 2023: Kacsmaryk Ordered A Hold On Federal Approval Of Mifepristone. According to the Associated Press, “U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, on Friday ordered a hold on federal approval of mifepristone in a decision that overruled decades of scientific approval. His ruling, which doesn’t take immediate effect, came practically at the same time that U.S. District Judge Thomas O. Rice, an appointee of former President Barack Obama, essentially ordered the opposite in a different case in Washington. The split likely puts the issue on an accelerated path to the U.S. Supreme Court.” [Associated Press, 4/8/23]
The Department Of Justice Appealed The Ruling To The 5th U.S. Circuit Court Of Appeals. According to the Associated Press, “The Justice Department quickly appealed Kacsmaryk’s decision to the 5th U.S. Circuit Court of Appeals. And for now, the drug that the Food and Drug Administration approved in 2000 appeared to remain immediately available in the wake of the conflicting rulings in Texas and Washington.” [Associated Press, 4/8/23]
The 5th Circuit Court Of Appeals Partially Blocked Kacsmaryk’s Order. According to ABC News, “Kacsmaryk's order was partially blocked by the 5th Circuit Court of Appeals, though that court imposed restrictions that would prevent mifepristone from being sent to patients by mail.” [ABC News, 4/21/23]
The Supreme Court Voted 7-2 To Grant A Stay To Allow Access To Mifepristone To Continue. According to ABC News, “The Supreme Court on Friday granted a full stay in a case concerning the Food and Drug Administration's approval of -- and the public's access to -- the widely used abortion pill mifepristone. The court's decision -- a 7-2 vote with Justices Samuel Alito and Clarence Thomas dissenting -- preserves access to mifepristone as the Biden administration and the pill's manufacturer appeal a lower court ruling that would impose restrictions on the drug.” [ABC News, 4/21/23]
The Case Went Before A Three-Judge Panel Of The 5th Circuit Court Of Appeals. According to Reuters, “During oral arguments in May, the FDA urged a three-judge panel on a federal appeals court to dismiss the case for a lack of standing, without considering the merits. A ruling could come any time and legal experts say the case is likely to eventually wind its way to the Supreme Court. […] At oral arguments in the appeal to Kacsmaryk's April ruling, judges on the U.S. Fifth Circuit Court of Appeals in New Orleans grilled both sides about standing, repeatedly referring to the testimony by Skop.” [Reuters, 6/29/23]
The 5th Circuit Court Of Appeals Ruled That The FDA’s 2016 Decision To Allow Mifepristone To Be Taken Later, Mailed Directly, And Be Prescribed By A Medical Professional Other Than A Doctor To Be Unlawful. According to the Washington Post, “A federal appeals court said Wednesday that it would restrict access to a widely used abortion medication after finding that the federal government did not follow the proper process when it loosened regulations in 2016 to make the pill more easily available. Food and Drug Administration decisions to allow the drug mifepristone to be taken later in pregnancy, be mailed directly to patients and be prescribed by a medical professional other than a doctor were not lawful, a three-judge panel of the conservative U.S. Court of Appeals for the 5th Circuit ruled.” [Washington Post, 8/16/23]
The Department Of Justice Said It Would Appeal The Ruling From The 5th Circuit To The Supreme Court. According to the Washington Post, “Mifepristone will remain available for now under existing regulations while the litigation continues, in accordance with a Supreme Court order this spring. The Justice Department said it will go back to the Supreme Court to appeal Wednesday’s decision, which only partially upheld a lower-court judge’s ruling in favor of a coalition of antiabortion challengers.” [Washington Post, 8/16/23]
Mifepristone Was Available While Litigation Continued As The Ruling Did Not Invalidate The Supreme Court’s Stay. According to the Washington Post, “Mifepristone will remain available for now under existing regulations while the litigation continues, in accordance with a Supreme Court order this spring. The Justice Department said it will go back to the Supreme Court to appeal Wednesday’s decision, which only partially upheld a lower-court judge’s ruling in favor of a coalition of antiabortion challengers.” [Washington Post, 8/16/23]