A statement that Robert F. Kennedy Jr. made last week suggests that he and the Trump administration are approaching a key decision about abortion in ways that would downplay scientific evidence, test the limits of the law and ― just maybe ― provoke a successful court challenge.
The statement came on Wednesday while the Senate Finance Committee was considering Kennedy’s nomination to lead the Department of Health and Human Services. It was a response to a question about mifepristone, one of two drugs used for medication abortion.
As HuffPost’s Alanna Vagianos has written, roughly 6 million Americans have taken the drug since 2000, when the U.S. Food and Drug Administration first gave its approval. The prevailing consensus among scientists is that mifepristone is as safe as over-the-counter drugs such as acetaminophen (Tylenol). More than 100 studies support this conclusion.
Abortion rights opponents have said that consensus is wrong, frequently by citing evidence of side effects that are widely understood both to exist and to be relatively uncommon. They want the FDA to withdraw its approval of mifepristone ― or, at the very least, to stop its distribution by telehealth and mail.
The FDA is part of the Health and Human Services Department, and many of these abortion rights opponents aren’t sure they’ll have an ally in Kennedy, given his past support for abortion rights. Among those wary of Kennedy are some Republican senators, including a few who will be part of Tuesday’s planned Finance Committee vote on his nomination.
In last week’s hearings, Kennedy addressed their concerns directly.
“President Trump has asked me to study the safety of mifepristone,” Kennedy said in response to a question from a Republican senator. “He has not yet taken a stand on how to regulate it. Whatever he does, I will implement those policies. I will work with this committee [to] make those policies make sense.”
That comment’s meaning is not entirely clear, which is pretty common for this kind of testimony. And it may not seem especially surprising, as Kennedy had already indicated he would follow Trump’s lead on reproductive rights.
But when it comes to drug approvals, pledging to do “whatever” the president wants is not consistent with how the FDA is supposed to operate ― or with what federal courts have allowed in the past.
What The Law Says About FDA Decisions
Under federal law, the basis for decisions on drug regulation must be scientific evidence, as interpreted by experts who work at or advise the FDA.
“Under the statute that governs drug approvals, FDA is required to follow the scientific evidence of a drug’s safety and effectiveness,” Samuel Bagenstos, who served as HHS general counsel under former President Joe Biden and is a professor at the University of Michigan, told HuffPost via email. “Courts have rejected efforts to inject ideological considerations into those decisions.”
It’s happened that way before, including in a pair of relevant, relatively recent cases.
One involved the question of whether to place an age restriction on the availability of emergency contraception, marketed as Plan B and known as the “morning-after pill.” Officials in the George W. Bush and Obama administrations sought to limit access, even though scientists who reviewed the drug for the FDA repeatedly concluded it was safe at all ages.
A federal judge ruled the scientific consensus should prevail, making the drug available without the age restriction.
More recently, the U.S. Supreme Court blocked the Trump administration from including a question about citizenship in the decennial census. Although that was a dispute about immigration, the justices blocked the census question for the same reason a lower court had blocked the age restriction on emergency contraception: They concluded the Trump administration had improperly overruled agency staff.
“The courts know that politics are always in the background,” Nicholas Bagley, an expert in health and administrative law who is also a University of Michigan professor, told HuffPost.
“That said,” Bagley explained, “if the court believes that politics drove a decision that’s in the teeth of the evidence (as in the birth control cases) or has actual evidence that politics was the only thing that mattered (the census case), they’re going to be much more skeptical.”
The legal experts HuffPost reached cautioned that judges considering the legality of agency approvals typically restrict themselves to the deliberations over those decisions rather than taking into account outside comments. But there are exceptions, they noted ― and a statement like Kennedy’s, they said, could draw their attention.
“Whether or not RFK’s statement ever appears in a court opinion, it’s the sort of thing that makes judicial eyebrows go up,” Bagley said in an email.
One likely factor in a hypothetical, future court dispute would be whether somebody challenging a Trump administration ruling on mifepristone could cite additional evidence of the administration’s motives.
“The devil would really be in the details about whether those challenging FDA action would be able to show that it was a political decision instead of a science-based decision,” Mary Ziegler, an expert in reproductive law who is a professor at the University of California, Davis, told HuffPost in a phone interview.
How The Courts Might Interpret Laws On The FDA
Of course, just how much scrutiny ― and what kind of scrutiny ― federal judges in a judiciary stacked with Trump appointees would bring to a mifepristone case is anybody’s guess.
A conservative federal judge in 2023 actually overruled the FDA’s own judgment on mifepristone, although the Supreme Court subsequently preserved access for the time being. And an FDA ruling changing mifepristone’s status is just one way abortion rights opponents have talked about rolling back reproductive rights in the wake of the 2022 Supreme Court decision overturning Roe v. Wade.
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But FDA decision-making has been a focus of conservatives for a reason: It would be a way to accomplish their goals while claiming they have the imprimatur of science. Kennedy’s comments, whatever their legal significance, would make that claim harder to sustain.