Mifepristone Is a Grave Evil, but Todd Blanche Is Not the Problem

Leaders of the some of the nation’s most prominent pro-life organizations have a bone to pick with Todd Blanche, the acting attorney general of the United States and President Trump’s nominee to hold that position on a permanent basis. That bone pertains to litigation in Louisiana that entails the Biden-era loosening of regulations on the distribution of mifepristone, the abortifacient now single-handedly responsible for an appallingly high percentage of the nation’s abortions. According to a recent letter to Blanche signed by 84 pro-life organizations, “Agreeing to a court-ordered consent decree would end the Biden Administration’s unlawful mail-order abortion drug policy and restore in-person dispensing while the [Food and Drug Administration] completes a prompt, rigorous safety review.”

I have ties to numerous of these pro-life organizations. There are few issues I am more passionate about, and few issues for which I have more ardently fought, than the right to life for the unborn. So I completely agree with the pro-life organizations and pro-life states, such as Louisiana, on the need to fight against murderous abortion drugs and the grave moral evil of mail-order abortifacient ubiquity. The issue is not the cause, but the specific target of the righteous ire. In this case, a demand that Trump’s attorney general nominee personally fix the problem is worse than feckless—it may well prove to be counterproductive to the very substantive goals the pro-life groups and I share. In short, we have a judiciary problem, not an attorney general problem. And we need to be prudent in how we seek to best protect women from on-demand mifepristone and the depredations of the abortion industry, more generally.

Let’s take a step back.

In the wake of the landmark 2022 Dobbs v. Jackson Women’s Health Organization decision, the Biden administration created a pro-abortion workaround. In 2021, Biden’s FDA temporarily changed the rules to allow providers to prescribe and ship abortion drugs through the mail to states that otherwise ban or restrict abortion. The new FDA rule became final in 2023. States like Louisiana, Arkansas, and Florida sued the Biden administration to block the death shipments to their own states. Louisiana won a significant victory in federal court, but it sadly proved to be short-lived. The Supreme Court temporarily enjoined the order, and the mifepristone shipments resumed.

But the story does not end there. In 2025, the Trump FDA began a fresh safety review of abortion drugs. This could provide the necessary leverage to reverse the 2023 Biden rule. And in May of this year, the Supreme Court regrettably passed on the opportunity to hear the Louisiana mifepristone case on the merits. Justice Clarence argued, in his dissent from the court’s denial of certiorari, that the Biden FDA rule violates the Comstock Act, a 19th-century law that proscribes using “the mails” to ship any “drug … for producing abortion.” Thomas, following the guidance or pro-life legal “genius” Jonathan Mitchell, is correct about the plain terms of the Comstock Act and the subversive Biden FDA rule. But unfortunately, Thomas’s dissent failed to garner a single additional vote.

One way for the Trump administration to resolve this mess, despite all this judicial chicanery, might appear to be simple: Why can’t the Department of Justice and Louisiana simply agree that the FDA should not allow such shipments and thus end the death shipments and end the litigation? It seems simple enough. And as stated, that is the main action-item request of the 84 pro-life organizations.

But it’s actually not so simple.

Let’s be clear: Louisiana is fighting a valiant battle. Every pro-lifer should commend Louisiana Attorney General Liz Murrill for courageously standing up to the murderous Biden rule and protecting vulnerable girls and women in Louisiana. And the pro-life groups are right that the FDA needs to reverse the Biden-era rule change that allowed this mail-order evil in the first place. To their tremendous credit, these groups have worked tirelessly to support Attorney General Murrill and advocate for the end of the mail-order barbarism. This work has led to encouraging progress: The FDA now appears to be doing the long, hard, and unglamorous work of a comprehensive safety review—a necessary procedural step to send this mail-order rule to the ash heap of history.

And the pro-life groups are right: Attorney General Blanche should want to sign the mifepristone consent decree with Louisiana. In fact, my guess would be that he personally wishes to do so. Unfortunately, the law in the Fifth Circuit on such consent decrees should cause everyone, including Blanche, some grave concern about taking such a course of action.

The Fifth Circuit, in a 2023 case called Pool v. City of Houston, held that “where the parties agree on a constitutional question, there is no adversity and hence no Article III case or controversy.” This means that according to the Fifth Circuit’s own precedents, the court cannot accept a consent decree when the litigants no longer disagree about the underlying issue being litigated. There are also subsequent Fifth Circuit cases enforcing the Pool rule, such as a 2025 case called United States v. Aguilar-Torres. In short, the consent decree path, which in the abstract seems so simple and obvious to finally settle the Louisiana matter, seems to be foreclosed for the Trump Department of Justice.

To further complicate the problem, there are third-party intervenors in the Louisiana case—abortion drug manufacturers and distributors—who will immediately appeal such a consent decree. That would risk the consent decree getting immediately vacated under Pool. Worse, it will gum up the Trump FDA review process and lead to a longer and more protracted process to bring the mail-order evil to an end. The result will be protracted legal proceedings and a delay in a permanent reversal of the Biden rule. None of this is desirable.

The easy answer for Blanche, if all he cares about is political advancement, is to simply sign the consent decree and then blame the system when it is promptly undone by the courts and used as leverage to gum up the FDA review process. But Blanche is choosing the harder route of working toward a durable solution that even the Fifth Circuit can’t stop.

The pro-life organizations should be angry about all this. I share that anger—especially as a former Fifth Circuit clerk (albeit for the most stalwart mifepristone-skeptical judge on the entire court). But unless Pool is overturned, Blanche really has no choice but to refrain from signing the consent decree route. To do so would be to risk setting back the FDA’s safety review work and, ultimately, losing the very issue we all care so much about—ending mail-order mifepristone. Blanche and Murrill are both fighting for pro-lifers, and they both deserve our support. But even if Blanche and Murrill agree, the Fifth Circuit will not. And that—not Todd Blanche—is where the real problem lies.

Josh Hammer is Newsweek senior editor-at-large, host of “The Josh Hammer Show,” senior counsel for the Article III Project, a Shillman Fellow at the David Horowitz Freedom Center, and author of Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West (Radius Book Group). X: @josh_hammer.

The views expressed in this article are the writer’s own.