Published July 15, 2026
Mifepristone kills children and should, ideally, be banned. I have no doubt that the various FDA rulemakings to which it has been subject were cooked by the left, as has long been the case for abortifacients and abortion drugs. The organization where I am a fellow, the Ethics and Public Policy Center, has put together a comprehensive report on mifepristone’s dangers, and the Trump FDA is right to be revisiting its regulatory status. At minimum, the FDA and HHS should put a halt to its transit across state lines into states that have actually banned it under their plenary police power to protect the health and morals of their citizens.
This has very little to do with Todd Blanche. Nevertheless, certain pro-lifers have been reportedly making the rounds, pressuring Republican senators to demand that Blanche settle the pending mifepristone litigation out of Louisiana. The DOJ has not settled that litigation (in my view, with good reason, although others disagree) because it would have significant, negative collateral effects. Nevertheless, pro-life groups have gone so far as to draft Senators John Cornyn and Thom Tillis to send Blanche a letter demanding that Blanche “direct DOJ to agree to a court-ordered consent decree.” This is a very bad idea and surprising coming from those senators.
The mifepristone litigation in the wake of Dobbs is sufficiently convoluted that it’s not worth getting into with detail. The short of it is that the Alliance for Hippocratic Medicine sued the FDA in Amarillo, Texas, and received a preliminary injunction against the FDA approval of mifepristone from the Clinton administration. The Fifth Circuit partially stayed the injunction as to the initial FDA approval but left it in place as to a later (2016) Risk Evaluation and Mitigation Strategy, or REMS, that made the drug easier to get. The Supreme Court reversed the Fifth Circuit, 7–2, and stayed the injunction. When a merits panel of the Fifth Circuit again enjoined the 2016 REMS it went up to the Supreme Court again, where Justice Kavanaugh wrote for the unanimous Court that the plaintiffs lacked standing.
Enter the current litigation out of Louisiana. It, unlike the prior litigation, challenges the 2023 REMS about in-person dispensing of the drug — rather than the 2000 approval and 2016 REMS — and it was brought by a coalition of states and not an association in an effort to ease the standing problems. The district court concluded that Louisiana had standing and was likely to prevail on the merits but declined an injunction because of the balance of equities and public interest because the Trump administration had announced that it was reviewing the 2023 REMS administratively. The Fifth Circuit, on appeal, reversed the district court and vacated the rule. Again it went to the Supreme Court which reversed the Fifth Circuit, 7–2, putting the rule back into effect.
The demand of Blanche is that he settle the case with Louisiana and use that mechanism to reverse course at the FDA through a consent order. After all, the DOJ is not exactly averse to collusive settlements in any administration.
There are a number of significant problems with this demand.
First, the DOJ is not the only defendant; the abortion-drug manufacturers have intervened in the case. This means that any settlement will be appealed, at which point the DOJ can either back out of the settlement, agreeing with the intervenors, or concede standing, and agree with Louisiana.
The DOJ is loath to concede standing to plaintiffs in suits like this. It’s not hard to see why: Here we have a state whose purported injury stems from the U.S. government being insufficiently restrictive in its regulation of mifepristone, thereby causing harm to citizens of Louisiana with the attendant costs to the state.
This theory of standing will open the floodgates. How many Trump regulations supposedly harm blue states because they’re insufficiently restrictive? The EPA’s Endangerment Finding comes to mind, to say nothing of the host of excellent regulations recently promulgated by ATF making it easier for law-abiding citizens to purchase firearms. If the DOJ concedes standing here it has opened the courtroom doors to California or Oregon or Massachusetts asserting standing in those cases under the very same theory. This would be a disaster for conservatives.
Moving beyond technical federal courts law to law and policy, there are further problems with settling this case. I mentioned the FDA’s reconsideration of the 2023 REMS, in part relying on EPPC’s analysis. It’s important that the public be made aware of these dangers presented by mifepristone and that the FDA build out a robust administrative record in support of those dangers. FDA doing so is an especially difficult process because the prior REMS restricted the adverse events reported to the FDA to those resulting in death. As a result, the FDA is having to build a record essentially from scratch. Nevertheless, if such a rule is to have any hope of surviving judicial review in the short or medium term, it will depend on that record.
A settlement will short-circuit that process. Assuming the settlement stands up on appeal (not a sure thing given that the anti-mifepristone side is batting two for 27 among the justices), it will be reversed immediately by the next Democratic administration. In the event of a consent order, the legal wrangling will be all about esoteric federal courts questions and not about the substance of the regulation and the dangers posed by mifepristone. That is not a recipe for success.
The Louisiana plaintiffs and their allies contend that the administrative process can continue in light of the settlement, but that’s fantastical reasoning. Given the significant manpower shortages at the DOJ and HHS, it’s entirely unrealistic to think that HHS will commit the significant resources necessary to a formal rulemaking that addresses an issue that has already been solved in litigation. While it’s technically possible that a settlement won’t end the process of reversing the 2023 REMS administratively, it’s not consistent with the reality of governance.
What makes this demand by Cornyn and Tillis most surprising, though, is the ethical problem it causes for Blanche. Conditioning their support on a particular litigation course of action puts the nominee in an impossible ethical position that could be catastrophic for the underlying policy.
If the nominee agrees to take a particular litigating position in order to secure his confirmation, he can’t ethically go on to take that action as attorney general. As attorney general his job is to follow the law and the Constitution without regard for his personal interest. A decision to settle this case that was a condition of confirmation would, on the other hand, be a decision of profound personal interest to the attorney general such that he cannot ethically make such a call.
Whatever course of action the DOJ takes in the Louisiana case, more litigation is sure to follow. Blue states and poison merchants will sue in favorable jurisdictions to abrogate the order and reinstate the earlier regulatory regimes. Given that this is all public, judges hearing mifepristone challenges brought by abortion supporters will likely deem such a decision by the attorney general invalid. In other words it’s a demand that the attorney general take an unethical action that will have negative effects for pro-life policy in collateral litigation.
That senators like Cornyn and Tillis are calling for this is utterly baffling. Institutionalists like them should want the attorney general turning square corners, not agreeing to drug deals with political interest groups in order to get confirmed.
Again, this doesn’t mean that they need to let Blanche off the hook. He can be made to agree to look at the request in good faith and with an open mind. He can be made to agree to put a serious pro-lifer in his front office with an open door to pro-life groups and politicians. Indeed, Jeff Sessions and Bill Barr did just that, and Blanche probably should anyway. But demanding a particular litigation action is inappropriate and counterproductive.
Michael A. Fragoso is a fellow at the Ethics and Public Policy Center in the Constitution, the Courts, and the Culture Program, where he writes and speaks on issues relating to the law, the federal judiciary, and Congress. An attorney in private practice, he served in all three branches of the federal government, including most recently as chief counsel to the Senate Republican Leader, Mitch McConnell (R-KY). His writing has appeared in The Wall Street Journal, National Review, The Harvard Journal of Law & Public Policy: Per Curiam, and elsewhere.
