Judge who wanted to ban mifepristone refuses to dismiss case

Despite SCOTUS's ruling that the original plaintiffs lacked standing, Judge Matthew Kacsmaryk is allowing three non-Texas states to keep the lawsuit going in his court.

The federal judge who unsuccessfully tried to ban the medication abortion drug mifepristone nationwide back in 2023 announced on Thursday that he is keeping a version of the case alive for now. The highly questionable order is all the more concerning coming just four days before the Trump administration is set to take over defense of federal agencies and laws.

In a brief and at times sarcastic order, U.S. District Judge Matthew Kacsmaryk, a Trump appointee in the Northern District of Texas, allowed three states that intervened in the lawsuit filed in Texas to continue with their challenge — despite the original plaintiffs having dismissed their case and the fact that the intervening states are Idaho, Kansas, and Missouri … three states not located in Texas.

In his order, Kacsmaryk claimed that the Justice Department and Danco Laboratories, the maker of Mifeprex, “deftly quote lines to seemingly further their position but do not further examine their nonbinding cases to evaluate whether they are truly persuasive to their position.” Instead, Kacsmaryk insisted that “venue remains disputed here and should be properly dealt with at a phase where each party may fully argue the issue.”

As such, he allowed the conservative states to file an amended complaint that they submitted initially in October and was covered at the time at Law Dork:

[T]he proposed amended complaint removes requests for relief that would end the original 2000 approval of mifepristone altogether. The proposed amended complaint, however, does continue to seek relief that would revert access of mifepristone back to pre-2016 rules — which, among other changes, would reverse the generic drug approval and revert to the in-person dispensing requirement. It also adds a handful of new claims.

Kacsmaryk’s order comes more than six months after the U.S. Supreme Court held unanimously that the original plaintiffs in the case lacked standing in their effort to block U.S. Food and Drug Administration Approval of the medication abortion drug.

In a September filing, DOJ and Danco made clear that they believed the litigation should be over because, in essence, if the original plaintiffs lack standing, there was never a valid action for the states to have intervened in. The Justice Department accordingly filed a motion to dismiss the case on November 1. In mid-November, before Kacsmarky ruled on that motion, the original plaintiffs voluntarily dismissed their case. Even then, however, Kacsmaryk asserted that he still had a live case before him as to the intervenor states, and the intervenor states insisted they should be allowed to proceed in Texas.

This is absurd. As DOJ’s lawyers explained in a December filing:

Notwithstanding dismissal of the original action, the three Intervenor States of Missouri, Idaho, and Kansas (“the States”) wish to continue pressing their claims. And they insist on doing so before this Court, even though the States’ claims have no plausible connection to the Northern District of Texas. Particularly now that the original Plaintiffs have dismissed their suit, the States’ Complaint must likewise be dismissed (or transferred), and none of the States’ arguments in opposition … warrants a different result.

And yet, on Thursday, Kacsmaryk claimed that DOJ and Danco did not prove that the intervening states’ amended complaint “would surely fail a motion to dismiss.” Because, per Kacsmaryk’s writing, “venue remains disputed here,” he found that it should be dealt with later, after the intervening states are allowed to file their amended complaint:

Notably, none of the three states ordinarily would have an appeal heard in the U.S. Court of Appeals for the Fifth Circuit, which had partially upheld Kacsmaryk’s original ruling. Their appeals ordinarily are heard by the Eighth (Missouri), Ninth (Idaho), and Tenth (Kansas) circuits. As such, the states have a strong interest in staying in the Fifth Circuit.

That does not, however, make venue proper here — beyond the underlying question of whether the states’ intervention was ever proper if the original plaintiffs lacked standing.

As DOJ argued:

[T]he States incorrectly suggest that this Court had jurisdiction over the original Plaintiffs’ claims at the time of intervention, which allows the States to continue litigating in this Court. But that is not how standing works; the Supreme Court’s decision necessarily means that this Court never had jurisdiction over Plaintiffs’ claims. And that is certainly true now that the original Plaintiffs have voluntarily dismissed their claims, making it as if their suit had never been filed.

And yet, by granting the motion to amend their complaint, Kacsmaryk essentially ignored the motions to dismiss the action that DOJ and Danco filed. Asserting that “a substantial portion of the pending motions to dismiss focus on original plaintiffs’ complaint and the only remaining complaint in this action will soon be amended,” Kacsmaryk denied the motions to dismiss as moot.

As I noted up top, the continuation of the litigation alone would be concerning enough, but the time makes it all the more concerning, coming four days before the administration changes and the Trump administration will take over the litigation. Although Danco will still be in the case regardless, the Justice Department, not to mention the FDA itself, could take a different position in the litigation after that time.