The Regulatory Battle over Abortion Pills Heats Up

Happy Tuesday! Not to brag, but Declan accurately predicted which three women were going to get sent home like ten minutes into last night’s episode of The Bachelor.

Quick Hits: Today’s Top Stories

• The Financial Times reported Monday House Speaker Kevin McCarthy will meet with Taiwanese President Tsai Ing-wen in the coming weeks, but in California rather than Taipei as originally planned. While McCarthy had previously said he would visit the island if he became speaker, the venue change apparently came at the request of Tsai, who expressed concern about a potentially “aggressive” Chinese response. The People’s Liberation Army launched a series of military exercises last summer when then-Speaker Nancy Pelosi—McCarthy’s predecessor—traveled to the island.
• The U.S. and South Korean militaries engaged in B-52 bomber exercises over the Korean Peninsula on Monday in response to North Korea’s missile tests and nuclear threats. The drills come days after top U.S. and South Korean officials announced their respective militaries would hold their largest joint field exercises in five years later this month.
• Estonian Prime Minister Kaja Kallas and her center-right Reform party won a resounding victory in parliamentary elections Monday, carrying 37 seats and all but ensuring she will stay on as prime minister and form a new coalition. Kallas and her party have been among Ukraine’s strongest supporters in the European Union and NATO.
• A Belarusian court on Monday sentenced exiled opposition leader Sviatlana Tsikhanouskaya to 15 years in a penal colony on charges of treason and conspiracy to seize power after she challenged the 2020 election results as rigged in favor of Belarus’ longtime autocratic leader Aleksandr Lukashenko. Tsikhanouskaya fled to Lithuania in the wake of the election, and appeared to dismiss the sentence that was handed down. “This is how the regime ‘rewarded’ my work for democratic changes in Belarus,” she wrote on Twitter. “But today I don’t think about my own sentence. I think about thousands of innocents, detained & sentenced to real prison terms.”
• D.C. City Council Chairman Phil Mendelson, a Democrat, wrote in a letter to Senate leaders Monday he was withdrawing the council’s controversial criminal code reform plan for additional changes—even as the Senate prepares to vote on a resolution overturning the measure in the coming days. The reform plan, which seeks to modernize the city’s criminal code while lowering maximum sentences for high profile crimes like carjacking and robbery, was passed over Democratic D.C. Mayor Muriel Bowser’s veto and prompted President Joe Biden to weigh in, saying last week he would not veto the Republican-sponsored disapproval resolution.
• The Atlanta Police Department announced Monday nearly three dozen people were arrested over the weekend—many of them charged with domestic terrorism—for attacking the site of a proposed police training center. Protesters who objected to the new facility—arguing it represents a militarization of police and is detrimental to the woodland area where it’s being built—allegedly attacked the site, throwing rocks, bricks, and molotov cocktails.
• Four American citizens were kidnapped on Monday in Matamoros, Mexico—directly across the border from Brownsville, Texas. According to Mexican President Andrés Manuel López Obrador, the four were traveling across the border to buy medicine when they were taken at gunpoint—reportedly after being mistaken for Haitian drug smugglers. The FBI has offered a reward for their safe return. 

Fighting at the Pharmacy

In a post-Roe world, pro-life protesters haven’t given up picketing and praying outside abortion clinics or courthouses. But they’ve added a new venue to their list: the corner of happy and healthy.

A group of protesters broke into Walgreens’ annual shareholder meeting in January to decry the pharmacy chain’s initial decision to sell abortion pills, and others have picketed outside chains like Rite Aid and CVS in recent days. But after Republican officials in 21 states threatened legal action, the pharmacy chain recently said it won’t sell abortion pills in—or mail them to—those states, prompting backlash from those who support abortion access. States haven’t stopped wrangling over all abortion regulations, but pill abortions have taken a leading role in fights over access.

The Food and Drug Administration has allowed medication abortions since 2000, and they now account for more than half of abortions in the United States, according to the Guttmacher Institute, a pro-abortion access research group. Most pill abortions involve two drugs—first mifepristone to dilate the cervix and block a pregnancy-sustaining hormone, then misoprostol to induce contractions. The vast majority of women who take these drugs don’t suffer serious complications—FDA data found about 85 percent of patients report side effects like fever or nausea, but serious outcomes like sepsis or hospitalization occur in less than 0.5 percent of cases. The FDA has recorded only 28 deaths among women in the U.S. using mifepristone for an abortion since the agency approved it in 2000 and concluded none could be causally attributed to the drug.

The pro-life Charlotte Lozier Institute, however, questions whether officials have enough information to conclude the average pill abortion is as safe as those studied in research trials, especially after the FDA dropped extra safety requirements like in-person visits to prescribers earlier this year. Only 28 states require providers to report post-abortion complications to officials, and the Centers for Disease Control and Prevention collects data from most states, but California—which accounts for an estimated 15 percent of abortions in the U.S.—is not among them.

In the wake of—and even before—the Supreme Court’s Dobbs decision overturning Roe v. Wade, the FDA has steadily made abortifacients more accessible. In late 2021 it permanently allowed telehealth prescriptions and mail-order deliveries and earlier this year allowed brick-and-mortar pharmacies to sell mifepristone after getting certified. In December, the Justice Department told the Postal Service it could continue shipping abortion pills to all 50 states—including states where they’re banned—since the post office can’t be sure recipients intend to use them unlawfully. 

Last month, attorneys general in 20 Republican-led states wrote to several pharmacy chains threatening legal action if they tried to offer abortion pills in those states—even though the pill abortions haven’t been formally outlawed in some of them. Kansas sent its own letter making a similar threat. Walgreens hasn’t yet been certified to carry the drug but wrote back last week noting the company has no intention of selling abortion pills in those states, promising, “If this approach changes, we will be sure to notify you.” 

Other pharmacies have yet to publicly respond, and Walgreens’ decision attracted blowback. “Women across the nation will be denied their right to access healthcare they are legally entitled to because of this awful corporate decision,” wrote JB Pritzker, governor of Illinois, where Walgreens is headquartered. California Gov. Gavin Newsom declared his state “won’t be doing business” with Walgreens or others limiting abortion access—though he didn’t offer details of what that would mean. Meanwhile, 23 Democratic attorneys general have written a joint letter urging Walgreens and CVS not to abandon plans to offer the pills.

Twelve Democratic state attorneys general have also sued the FDA in Washington for “singling out” mifepristone for “particularly burdensome” safety restrictions via a Risk Evaluation and Mitigation Strategy (REMS) intended to ensure side effects are caught and treated. The FDA has softened mifepristone’s REMS, but providers and pharmacies must be certified and prescribers must attest they can provide patients with access to blood transfusions and resuscitation if needed. Pharmacies mailing the drugs must use a service that offers tracking information, and patients receiving a prescription must sign a Patient Agreement Form certifying they understand what side effects require medical attention. Attorneys suing the FDA to loosen these requirements note only 60 other drugs have REMS, including ones like fentanyl.

Meanwhile, pro-life groups represented by the Alliance Defending Freedom have sued in Texas challenging the FDA’s mifepristone approval, arguing the agency failed to properly study safety effects. The case’s judge, Matthew Kacsmaryk, is a Trump-era nominee and personally pro-life, potentially rendering him sympathetic to the pro-lifers’ arguments. But even if he rules against the FDA, it’s unclear how sweeping his ruling would be or how the agency would respond.

Knives Out for Khan

You know that old adage, “If you don’t have anything nice to say, don’t say anything at all?” Turns out there’s an addendum: “If you don’t have anything nice to say, don’t say anything at all—unless you can publish your criticism in the opinion section of the Wall Street Journal.”

Christine Wilson, a Republican commissioner on the Federal Trade Commission (FTC), did just that last month, announcing her resignation from the executive agency in an op-ed that took aim at the FTC’s Democratic chair, Lina Khan. “Since Ms. Khan’s confirmation in 2021, my staff and I have spent countless hours seeking to uncover her abuses of government power,” Wilson wrote. “I have failed repeatedly to persuade Ms. Khan and her enablers to do the right thing, and I refuse to give their endeavor any further hint of legitimacy by remaining.” Her exit—scheduled for the end of March—will leave the commission with a 3-0 Democratic majority and two vacant Republican seats.

In case you haven’t been keeping up with the riveting world of federal antitrust policy, President Joe Biden tapped Khan to serve as chair of the FTC shortly after he took office in 2021, and she was confirmed to her post that June. Almost immediately, she began a push to expand the scope of the agency’s regulatory authority. 

Prior to joining the FTC, Khan was an active figure in what’s known as the “hipster antitrust” movement—a coordinated effort to expand the scope of antitrust law by moving beyond a narrow focus on consumer welfare (in the form of low prices and consumer choices) and toward a broader approach that’s skeptical of size for size’s sake—even if that large company is providing good products at low cost. Khan also worked at the Open Markets Institute—a leading “hipster antitrust” think tank—but her initial claim to fame was a provocative law review article on “Amazon’s Antitrust Paradox” she published while at Yale. Now 34 years old, she came into office with a sizable—albeit nerdy—fan base.  

Enemy number one for hipster antitrust is the consumer welfare standard—the legal framework that has governed competition policy for more than 40 years. In simple terms, if a merger won’t harm consumers, then typically competition enforcers don’t challenge the deal. “The current framework in antitrust—specifically its pegging competition to ‘consumer welfare,’ defined as short-term price effects—is unequipped to capture the architecture of market power in the modern economy,” Khan wrote in the law review article. Khan and the other Democratic commissioners have also pushed for broader competition rulemaking with significant economic implications. In January, the commission announced a proposed rule to ban non-compete clauses in employment contracts (we wrote about it here). 

On the other side of the debate, proponents of status quo antitrust frameworks argue Khan’s FTC is taking antitrust enforcement in the wrong direction and overstepping the bounds of the agency’s authority. Wilson’s resignation further heightened the criticism, highlighting specific objections to not only the hipster antitrust approach but Khan’s personal conduct as chair.

So, is this FTC hullabaloo mainly about Khan’s alleged failings as head of the commission or is it a microcosm of broader objections against a movement to restructure antitrust law enforcement? It’s likely some of both. 

“I disagree with Ms. Khan’s policy goals but understand that elections have consequences,” said Wilson in a Wall Street Journal op-ed last month. “My fundamental concern with her leadership of the commission pertains to her willful disregard of congressionally imposed limits on agency jurisdiction, her defiance of legal precedent, and her abuse of power to achieve desired outcomes.”

Wilson argued Khan has consolidated power in the chairmanship and alienated FTC staff, referencing federal employee surveys that show 44 percent of surveyed FTC employees said they have a high level of respect for the FTC’s senior leadership—down from 83 percent in 2020. 

These are unprecedented levels of dissatisfaction for the agency. “Those numbers are nothing like what we’ve seen at the FTC before,” Geoffrey Manne, president of the International Center for Law and Economics, told The Dispatch. “The dissatisfaction seems to be not just with some kind of general political allegiance, but with how the agency is being run since the new administration has been there.”

Some hipster antitrust thought leaders have pushed back against the complaints. “It’s just anger at the shift of antitrust enforcers back to a faithful reading of the law,” Matt Stoller, director of research at the American Economic Liberties Project, told The Dispatch. “It’s not a partisan disagreement, it’s simply about protecting an old way of doing things that clearly doesn’t work.” Throughout Khan’s tenure at FTC, Wilson has voiced strong criticisms of the agency’s new policy direction, at times even claiming Khan’s antitrust views have ties to Marxist ideology. 

Khan is also facing scrutiny from some Republican lawmakers. Rep. Cathy McMorris Rodgers, chair of the House Energy and Commerce Committee, and Rep. Gus Bilirakis, sent a letter to Khan last week requesting the agency share additional information regarding the complaints made by Wilson. Rep. Jim Jordan, chair of the House Judiciary Committee, is also reportedly planning to investigate Khan. 

Congress has delivered slaps on the wrist to the FTC in the past. In 1980, for example, Congress briefly defunded the agency following pushback over what lawmakers viewed as FTC overreach. “The press should take an interest in Ms. Khan’s bad management,” wrote Robert Bork Jr., a conservative legal scholar, in a Wall Street Journal op-ed last week. “It won’t, but that shouldn’t stop Rep. James Comer and the House Oversight Committee from investigating.”

But despite the criticism, Khan shows no signs of changing course. Politico reported yesterday that Sarah Miller, the executive director of the American Economic Liberties Project, will be joining FTC as a special advisor. Miller is arguably even more ardent than Khan about the need to expand competition policy.

The recent uproar points to the increasingly politicized nature of antitrust issues—gone are the days of antitrust being confined to technical policy discussions. Khan herself forecasted this shift before she joined the commission, writing in 2020, “The end of antitrust history proved instead to be a prolonged pause in an enduring clash over the purpose and values of the U.S. antitrust laws.” 

Worth Your Time

• In a magazine piece rife with baseball metaphors, Eric Boehm takes the long view of Ron DeSantis’ career in politics and ponders whether the Florida governor is ready for the big leagues. “The governor doesn’t seem to be content with the important, but often overlooked, role of reliever,” Boehm writes for Reason. “For the past few years, he’s attempted to rebrand himself as a bombastic power hitter, ready to take a huge swing at whatever pitch the other team throws his way. That’s gotten DeSantis more attention from the fans and media—chicks dig the long ball, after all, and so do Republicans—but it has come with a cost. In politics, unlike baseball, these two positions are not quite so mutually exclusive. But understanding how DeSantis fits into both roles reveals the tension between the competing claims at the center of his prospective candidacy. On one hand, he’s a competent conservative who has overseen a successful state through a challenging time—the type of pitcher you can trust when there are runners on base. On the other, he’s a brash anti-woke slugger whose authoritarian antics draw more attention, by design, than the results of his big swings.”
• For the MIT Technology Review, Rhiannon Williams provides a handy guide to cutting down the time you spend looking at your devices—and why you should probably want to. “The first step is recognizing that you’re in a habit loop,” she writes. “Take stock of the fact that you have a compulsion to refresh your work emails even on vacation, for example. Write these issues down so you can keep a record of what you’d like to address. The second is to ask yourself what [Brown University mindfulness researcher Jud] Brewer calls a key question that can apply to any behavior: ‘What am I getting from this?’ Our brains are wired to keep doing the things they find rewarding, whether it’s smoking, eating, or checking social media, he explains. ‘If something’s rewarding, we’re going to keep doing it—that’s how reinforcement learning works. So you can actually subvert that dominant paradigm by having people pay attention to exactly how rewarding the behavior is.’ This will help you to recognize what’s good and what’s a waste of time. The third and final step involves identifying the bigger, better offer—the more rewarding reward that helps you break the habit loop.”

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Toeing the Company Line

• It’s Tuesday, which means Dispatch Live (🔒) returns tonight at 8 p.m. ET/5 p.m. PT! The team will discuss the news of the week and, of course, take plenty of viewer questions! Keep an eye out for an email later today with information on how to tune in.
• In the newsletters: Kevin details the plight (🔒) of a Belarusian poet, the Dispatch Politics team sheds some light on CPAC and Ohio’s 2024 U.S. Senate race, and Nick tracks the class divide (🔒) between Donald Trump and DeSantis. “If you want to know why DeSantis’ polling against Trump seems to have slipped lately, that’s it in a nutshell,” he writes. “White-collar Republicans tend to favor him by modest margins whereas blue-collar Republicans prefer the O.G. populist by more formidable ones.”
• On the podcasts: On a jam-packed episode of Advisory Opinions, David and Sarah jump from safe spaces of yore to a death row case to the Murdaugh trial to the Georgia grand jury forewoman.
• On the site: Charlotte interviews former National Security Adviser Stephen J. Hadley on the rise of Xi Jinping’s China and John Gustavsson writes on the threat the Mexican government’s electoral reform plan poses to the country’s stability.

Let Us Know

Do you plan to put any of Rhiannon Williams’ tips for logging off to use? How do you draw the distinction between rewarding and time-wasting screen time?