The Biden administration is over. It’s time its policies were, too.
Recently, Michael Fragoso wrote in these pages that the Food and Drug Administration’s 2023 “safety standards” surrounding abortion drugs were “cooked by the left,” and that the FDA should halt the flood of unlawful abortion drugs across state lines. Indeed, that is why we are litigating Louisiana v. FDA — to provide such relief, despite Fragoso’s criticisms of the case.
It’s imperative to get the facts right. Our lawsuit isn’t a “coalition of states” case — it’s Louisiana defending its own sovereign laws against the Biden FDA’s reckless removal of in-person dispensing, alongside Rosalie Markezich, a young Louisiana woman whose ex-boyfriend ordered mifepristone from a California doctor, coerced her to take it, and ended the life of her child.
No one should be content to leave the “cooked” Biden 2023 rule in place while the FDA studies the drug further. To argue the rule is so unlawful and harmful that it must remain in place so it can be studied makes little sense.
And it gets administrative law backwards. When an agency admits its own rule was “cooked,” the remedy isn’t a research grant — it’s vacatur. There is no principle of administrative law called “immunity by study.”
Here is what “further study” means on the ground: nearly 1,000 unborn children lost in Louisiana every month while the FDA studies whether the rule killing them is a good idea, and women coerced by abusive men and traffickers while the agency decides whether that’s happened enough to restore commonsense safeguards.
Procedural objections to our lawsuit fare no better. One can’t say that HHS won’t finish its study if litigation resolves the issue and then also say that any potential consent decree would be “reversed immediately” by the next Democratic administration. Both can’t be true.
And in reality, neither is. A consent decree is a court judgment, not something a new administration can walk away from. And there’s no reason HHS won’t complete a review it insists is well underway, especially when Acting Attorney General Todd Blanche himself has rightly said the flood of unregulated high-risk drugs by mail “is wrong,” that the Department of Justice “[is] not” and “will not” defend the Biden Risk Evaluation and Mitigation Strategy, and that he wants pro-life states able to enforce their own laws.
Some concede that resolving a lawsuit via consent decree to undo an indefensible rule is a bipartisan staple of governance yet fret about intervenors blocking the way. But the DOJ joined plaintiffs to vacate an unlawful rule in Mid-America Milling Co. v. U.S. DOT over intervenors’ objections. Nor is the tool partisan. The Obama administration settled with environmental groups in 2011 to fast-track hundreds of endangered species listings over industry’s objections.
On standing, nobody should share the Biden administration’s position that no one may challenge the FDA’s reckless removal of the last meaningful safeguard on a “black box” drug that sends roughly 1 in 25 women to the emergency room. An agency immune from everyone it’s harmed is not a feature of American law.
Notably, every federal judge who has considered the merits has found the FDA acted unlawfully in removing its original safeguards. And Louisiana has the receipts: over $92,000 in Medicaid costs from two hospitalizations caused by mifepristone, plus $17,000 in enforcement costs from three investigations — the kind of economic harm the Supreme Court calls quintessential injury. As for traceability, the Biden FDA didn’t stumble into flooding states with mail-order abortion drugs. It designed the 2023 rule precisely to subvert state law.
A unanimous Supreme Court in Department of Commerce v. New York held that harm from the predictable choices of third parties is still traceable to the government action that set those choices in motion. And in Diamond Alternative Energy v. EPA, the Court reinforced that government “may not target a business or industry” through unlawful regulation and then claim the target is an unaffected bystander barred from court.
Recognizing Louisiana’s standing won’t hand states a blank check to sue over any rule they dislike, but denying standing would tell agencies they can dismantle safety requirements with impunity.
State law existed to protect Markezich. The Biden FDA made sure Louisiana couldn’t enforce it — and she and her child paid the price.
The Biden administration is over. It’s time its policies were, too. Blanche rightly said he wants the DOJ to “do their work, so that we can continue to protect the lives of the unborn and the states’ laws.” But others aren’t simply discussing when that should happen. They’re arguing it shouldn’t happen at all. That’s gratuitously putting politics over the rule of law.
Liz Murrill is the attorney general of Louisiana. Kristen Waggoner is CEO, president, and chief counsel of Alliance Defending Freedom.