FOIAengine: Early Warnings from Florida AG, Judicial Watch, and the Media
Florida Attorney General Ashley Moody is a straight-talking law-and-order prosecutor who made more than a few things perfectly clear on the way to crushing her Democratic opponent in last November’s general election.
She’s pro-gun, anti-vax mandate, pro-DeSantis, and anti-Biden. Favors the death penalty. Doesn’t like TikTok. (“Major concerns.”) Supported Trump by signing on to a multi-state lawsuit to overturn the results of the 2020 presidential election in four states – a quixotic ploy that was quickly tossed out by the U.S. Supreme Court.
She’s sued the Biden Administration over issues ranging from immigration to mask mandates. Earlier this month, after trumpeting a federal court victory against the Department of Homeland Security over what she calls its “catch-and-release” immigration policies, Moody urged Congress to impeach the department’s leader, Alejandro Mayorkas, unless he is willing “to do the patriotic thing and resign.”
And she’s a FOIA fan, using it to chum red meat to her base. Just last week, Moody sued the Departments of Justice and Health and Human Services for ignoring her office’s FOIA requests – emailed to both departments – about whether the Biden Administration program used taxpayer money to purchase crack pipes for drug addicts. Moody cited an article in the Washington Free Beacon that suggested crack pipes might be in “safe-smoking” kits being distributed as part of the $30 million Biden program to reduce drug-overdose deaths. She didn’t receive a response from either department, so on April 12 she filed the FOIA lawsuit and her office issued a press release: “If Biden is using your tax dollars to buy crack pipes for drug addicts, you have the right to know. Our country is in the grips of a drug overdose crisis, and the Biden Administration is stonewalling our requests and keeping the public in the dark about so many misguided, reckless policies. We are taking them to court to get answers for the American people.”
Still, that’s not the most noteworthy FOIA request from Moody’s office. The Florida attorney general shows up in the FOIAengine database with a February 3, 2023 request to the Food and Drug Administration that injects Moody further into the post-Roe debate over the abortion-inducing drug mifepristone. And she’s not alone in demanding FOIA disclosures from the FDA about its decision-making around the drug’s use.
The agency recently also received detailed FOIA questions from Judicial Watch, the conservative fund-raising juggernaut and litigious FOIA requester, as well as from the news media. FOIA requests can be an important early warning of bad publicity or litigation to come. That is why PoliScio Analytics’ competitive-intelligence database FOIAengine tracks FOIA requests in as close to real-time as their availability allows. Of particular interest are requests that may significantly affect stocks and markets once the stories or litigation hit.
The FOIA requests about mifepristone are significant because they reflect the rapidly shifting battle in the U.S. over abortion. Following the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned the Court’s 1973 Roe v. Wade ruling, mifepristone – which accounted for more than half of U.S. abortions before Dobbs – remains the most accessible option for ending a pregnancy in states where abortion remains legal. Abortion opponents are turning their fire on the FDA, seeking to roll back or end altogether the agency’s approval of drugs used to end pregnancies. At risk are the lucrative, and secretive, franchises managed by the drugs’ two U.S. distributors, Danco Laboratories and GenBioPro. Both companies are privately held, have only one product, and don’t release information about their revenue or operations.
Mifepristone usually is prescribed along with a second drug, misoprostol, that is distributed by, among others, publicly held Pfizer and Sun Pharmaceuticals. The risk for drug makers of getting pulled into the abortion debate and resultant litigation already is clear. Danco, for example, is the petitioner in the abortion-pill case pending now at the Supreme Court. GenBioPro, which entered the market in 2019 with a generic version, also has recent cases pending.
Danco, which has distributed the drug since 2000 under the brand name Mifeprex, has a multi-layered corporate structure designed to defeat snooping into its workings. The precaution stems in part from a fear of anti-abortion extremists, considered to be domestic terrorists by the Justice Department. The company was originally set up in the Cayman Islands under the auspices of the non-profit Population Council, and was at first headed by a lawyer who, unbeknown to the group, had been disbarred after a forgery conviction. Once that came to light, the Council had to scramble to find new management. Danco, named after the disbarred lawyer’s son, has been a litigation magnet since its inception, with its private equity investors squabbling among themselves over who should get what. Even before Danco brought mifepristone to market, its early investors fought over money and ended up in then-Court of Appeals Judge Sonia Sotomayor’s courtroom in Manhattan, in a dispute that one blogger called “a falling-out among thieves.”
Until 2016, the FDA had stricter rules in place about how mifepristone could be used. Three in-person doctor’s visits were required, the pill couldn’t be sent through the mail, and it couldn’t be used after seven weeks of pregnancy. The rules were relaxed during the Covid-19 pandemic, allowing telemedicine appointments and mail-order delivery. But after the Dobbs ruling, the Biden Administration in January 2023 authorized the FDA to make the looser restrictions permanent. What the anti-abortion activists and others are asking in their FOIA requests is whether the FDA followed its own regulations in making the abortion pills more widely available – or whether, in essence, the Biden Administration is making an end-around to Dobbs.
In separate FOIA requests from September 2022, the Wall Street Journal and Bloomberg Government made sweeping requests for emails and other documents that could shed light on how the White House and the FDA made their decisions.
The Journal’s request to the FDA was for abortion-related communications between the FDA commissioner and the White House. Bloomberg’s request, interestingly, was focused on Transportation Secretary Pete Buttigieg. White House reporter Courtney Rozen sought communications from the Department of Transportation “mentioning the words mifepristone, Roe v. Wade, Dobbs v. Jackson, pregnant, or abortion” and “sent, received, exchanged, or forwarded” from Buttigieg, Deputy Secretary Polly Trottenberg, and Chief of Staff Laura Schiller from May 2 through June 25, 2022.
The FOIA requests to the FDA from Judicial Watch, dated March 1, are focused on investigational new drug applications and test results for Mifeprex and mifepristone. FOIA litigation is Judicial Watch’s bread and butter. The unabashedly conservative group has more than a thousand cases listed in Docket Alarm, spends big on fund raising, and pulls in huge sums from its appeals. Its most recent IRS report available, from 2019, showed $110 million in annual revenue and $239 million in the bank – enough to fund a lot more FOIA cases. In 2006, Judicial Watch notched a federal appeals court victory against the FDA in a FOIA case over mifepristone. Expect more cases from this litigation machine.
In Florida, abortion is a hot-button issue in a state that is one of the few in the South allowing abortion. Earlier this month, DeSantis signed a law that would ban abortion after six weeks of pregnancy.
Attorney General Moody’s recent FOIA request is sweeping. It seeks “all communications between [a relevant FDA or Health and Human Services official] and any individual or entity outside the federal government regarding the possibility of the FDA approving abortion-inducing drugs to be sent or received by mail, including but not limited to mifepristone, etc.”
In late 2021, Moody defended her opposition to vaccine mandates, tweeting that Floridians “are pro-freedom, and I am taking legal action to make sure we stay that way.” But, as a term-limited AG with likely future aspirations in a deep-red state, she has made clear that freedom has its limits. Last February, she renewed efforts to cut off state funds to Planned Parenthood in light of Dobbs. “There is no constitutional right to abortion,” she said, quoting the Court’s majority opinion: “Roe was egregiously wrong from the start.”
Coming next from FOIAengine: FOIA requesters weigh in on Ozempic.
John A. Jenkins, co-creator of FOIAengine, is a Washington journalist and publisher whose work has appeared in The New York Times Magazine, GQ, and elsewhere. He is a four-time recipient of the American Bar Association’s Gavel Award Certificate of Merit for his legal reporting and analysis. His most recent book is The Partisan: The Life of William Rehnquist. Jenkins founded Law Street Media in 2013. Prior to that, he was President of CQ Press, the textbook and reference publishing enterprise of Congressional Quarterly. FOIAengine is a product of PoliScio Analytics (PoliScio.com), a new venture specializing in U.S. political and governmental research, co-founded by Jenkins and Washington lawyer Randy Miller. Learn more about FOIAengine here. To review FOIA requests mentioned in this article, subscribe to FOIAengine.