DOJ: Trump admin is reviewing mifepristone cases, dropping EMTALA case

DOJ has until May 5 to say whether it is changing position in a challenge to mifepristone access. UPDATE: DOJ dismissed its EMTALA case against Idaho.

The Trump administration began weighing in on abortion-related litigation this week.

The Justice Department asked for and received a two-month deadline extension in the still-ongoing mifepristone access case before U.S. District Judge Matt Kacsmaryk as part of a review by the Trump administration of “mifepristone-related litigation.”

Although the Justice Department did not announce any change in position in the Northern District of Texas case in its Monday filing, the DOJ lawyers asked for the two-month extension, in part, so “the new Administration” can “familiarize themselves with the issues in this case,” specifying that they were “seeking” the extension here and in “other mifepristone-related litigation.”

Reviewing several other mifepristone-related cases, however, Law Dork found no similar filings from “the new Administration” as of publication Tuesday. (Let me know if I missed something!)

The request is, if nothing else, a concerning sign that merits close attention.

This case only remains active at all — despite the U.S. Supreme Court holding unanimously in 2024 that the original plaintiffs lacked standing in the challenge — because Kacsmaryk has ruled, for now at least, that another set of plaintiffs who intervened in the case — the states of Idaho, Kansas, and Missouri — still have an active case seeking to restrict mifepristone’s access before him.

The Justice Department, in the final days of the Biden administration, asked for that remaining case to be dismissed, as did Danco Laboratories, the maker of Mifeprex, later in January. The states opposed those motions in February, and the deadline at issue is DOJ’s reply brief — which ordinarily would be expected to support DOJ’s motion to dismiss the case.

That DOJ — and the named defendants, including the U.S. Food and Drug Administration — need more time to “familiarize themselves” with the case is cause for concern in light of the topic and the moment.

The move comes as the Trump administration has, in many instances, moved to enact parts of Project 2025. In the Justice Department section of Project 2025’s “Mandate for Leadership” book, it called for a “campaign” to prosecute attempts to mail abortion medication. Other portions of the plan advocated for further abortion-related restrictions, including specifically banning mifepristone.

In a sign of the other reality of this moment — the many lawsuits the Trump administration is facing — the DOJ lawyers also asked for the two-month deadline extension because “undersigned counsel has been occupied by several other matters involving emergency deadlines.”

Yaakov Roth, the acting head of the Civil Division, is the top name on the brief, as is the normal practice for such filings. Roth, to be sure, has been involved in much litigation since joining the Justice Department in February — leaving his partnership at Jones Day to do so.

The brief is signed by Daniel Schwei, special counsel in the Federal Programs Branch of the Civil Division, who has argued in multiple cases challenging the Office of Management and Budget’s grant and loan freeze and subsequent ongoing efforts to freeze funds, among other cases.

Although the court filing on Monday expressed the lawyers’ occupation with “emergency deadlines,” I would note that Roth’s other filing of note on Monday was the completely out-of-pocket, unnecessary, no-deadline-involved “Statement of Interest” filed by Roth and two lawyers from the U.S. Attorney’s Office in Colorado in a federal habeas corpus application filed by Tina Peters.

The former Mesa County clerk, Peters is in prison following her conviction on state charges relating to her role in a voting systems breach. DOJ filed the statement to note that “[r]easonable concerns have been raised about various aspects of Ms. Peters’ case,” including that she was given a long sentence and not allowed release during her appeal. It primarily has been cited in news reports, though, for the likely meaningless announcement that DOJ is “reviewing” Peters’s prosecution.

Perhaps if Roth were actually focused on the Justice Department’s federal cases — and if the Trump administration would stop taking illegal and unconstitutional actions — he wouldn’t need to be asking for two-month extensions.

But, that’s just me.

The delay was not opposed by any of the parties, with the states consenting to the extension and Danco taking no position on the two-month extension so long as the drug company was given a similarly extended deadline, as its lawyers stated in their own request. GenBioPro, the maker of generic mifepristone, is seeking to intervene in the case, and it took no position on the two-month extension.

On Tuesday, Kacsmaryk granted the extension.

As such, DOJ, along with the FDA and other defendants, now have two months to “familiarize themselves” with the case — and have until May 5 to take a position in the case.

Law Dork will report on what happens.

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Trump administration to drop EMTALA case

[Update: This section was added at 7:30 p.m., with a further update at 9:00 p.m.]

Also on March 3, DOJ’s Daniel Schwei was letting people in Idaho know that DOJ plans to dismiss the Emergency Medical Treatment & Labor Act (EMTALA) lawsuit that the Justice Department brought against Idaho during the Biden administration to protect emergency abortion care that otherwise would be illegal under Idaho’s near-total abortion ban.

As a result of the ongoing case, an injunction has protected patients and hospitals providing necessary abortion care.

The dismissal of the lawsuit is planned for Wednesday, per Schwei’s Monday email:

This email was filed as an exhibit in another lawsuit on Tuesday, brought earlier this year by St. Luke’s Health System in Idaho. As a result of the planned dismissal of the DOJ case, which would end the injunction, St. Luke’s asked for and got a temporary restraining order from U.S. District Judge B. Lynn Winmill on Tuesday:

Winmill — who also is the judge in the DOJ litigation — made clear that the situation was unusual, but that, as such, his response was slightly unusual. He already had a hearing scheduled for Wednesday to consider St. Luke’s motion for a preliminary injunction and Idaho Attorney General Raúl Labrador’s motion to dismiss the case when the TRO request came to him on Tuesday (as a result of DOJ’s email on Monday).

“Given the last-minute developments, here, however, and the short turn-around time, the Court has determined that the most efficient course of action is to proceed with the hearing tomorrow and to leave the TRO in place for a short period of time after the hearing, which will allow the Court time to fully consider the arguments offered at the hearing,” Winmill wrote.

As to the DOJ case, the ACLU issued a statement on Tuesday evening criticizing the decision.

“The Trump administration has made clear they would let women die rather than get an abortion. In dropping the case, the administration sanctions preventing doctors from providing emergency medical care to patients that is necessary to save their lives and health,” Deirdre Schifeling, chief political and advocacy officer of the American Civil Liberties Union, said in the statement.

[Update, 3 p.m. March 5: The Justice Department, as Daniel Schwei wrote was being planned, filed its stipulated dismissal on Wednesday.

The filing noted that the injunction in the case protecting emergency abortion care in Idaho is dissolved with the dismissal. However, and as reported on Tuesday at Law Dork, Judge B. Lynn Winmill had already issued another temporary restraining order on Tuesday in another lawsuit brought by a hospital system, keeping the emergency abortion care protections in place for now.]