The destruction of Roe v. Wade has sparked legal battles in the US as individual states enact laws restricting access to abortion procedures. But the legal status of drugs used to terminate pregnancy could lead the fight into an even murkier legal zone.
Since the U.S. Supreme Court ruling last month, states that have restricted abortion have made it clear that the same applies to drug-based abortion — a method now used in more than half of all abortions in the country.
But that has raised questions about the enforcement of such laws and whether states actually have the power to ban drugs approved by the U.S. Food and Drug Administration (FDA).
It also means that it is highly likely that the country’s highest court is not yet done with the issue of abortion.
“It would almost certainly go back to the Supreme Court, and there’s no telling how the conservative judges will rule,” said Lawrence Gostin, the faculty director of the O’Neill Institute for National and Global Health Law at Georgetown University in Washington. DC
2 drugs used for medical abortion
A regimen of two pills is used for medical abortion – mifepristone and misoprostol – which is approved for use during the first 10 weeks of pregnancy.
Mifepristone, taken orally, prevents the progression of an existing pregnancy by widening the cervix and blocking the effects of the hormone progesterone, while misoprostol, taken 24 to 48 hours later, works to empty the uterus by preventing cramping and bleeding. cause, similar to an early miscarriage.
The use of the medication can be self-administered at home and there is no need for a medical procedure afterwards. But the drugs are subject to restrictions at both the state and federal levels.
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For years, the FDA has required individuals seeking mifepristone to go to a medical clinic to obtain it. But in December 2021, amid the COVID-19 pandemic, the federal agency lifted that requirement, meaning the drug could be obtained by mail — though it would still have to be prescribed by a certified health care provider.
With some states now banning abortion medications, pregnant people in those jurisdictions will either have to travel to another state where abortion remains legal or have the pills shipped to them from those states or abroad through organizations such as Aid Access, a European non-profit organization that sells pills. emails to women in the US
This new battleground began to form before the Roe ruling, as some states had passed the legally vague decision to ban the practice of telemedicine abortion and prohibit residents from receiving abortion medications in the mail.
However, the enforcement of such laws can face challenges.
Targeting people’s mail, for example, would be difficult for state authorities, who have no jurisdiction over the US Postal Service, an independent federal agency, explains Rachel Rebouché, an expert on reproductive health law and the Temple’s interim dean. University Beasley School of Law in Philadelphia.
“States do not have the authority to loot the post without a warrant,” she said. “I think it’s hard [to enforce]† States could get warrants; they could possibly check the mail. But that’s hard – and they probably know it.”
States may treat abortion drugs as illegal drugs, and go after individuals for possession. But many anti-abortion groups have said they don’t support criminalizing abortion patients.
Medication bans can also prosecute cross-border.
A draft paper co-authored by Rebouché — titled “The New Abortion Battleground” and to be published in the Columbia Law Review — addresses the issue and suggests that “out-of-state and out-of-country providers” are engaging in state crimes. by providing these telehealth services.”
“In a post-Roe world, anti-abortion states will struggle to establish jurisdiction over these out-of-state suppliers, while abortion-protective states will try to protect their suppliers from out-of-state prosecution,” the authors write.
On the other hand, some states where abortion remains legal have enacted laws to protect abortion providers from extradition to states where the practice is banned.
But Gostin said it would be extremely difficult for one state to charge or punish a health care provider who prescribes abortion medications in another. “States have no jurisdiction beyond their state borders.”
Federal Lawsuit Over Pill Ban
As the country’s abortion laws continue to shift, individual states may eventually find themselves in legal battles over the FDA’s approval of abortion medications.
Shortly after the Supreme Court ruling, Attorney General Merrick Garland released a statement hinting at how some abortion restrictions might be fought.
“We stand ready to work with other branches of the federal government that want to use their lawful authorities to protect and preserve access to reproductive care,” he said. “In particular, the FDA has approved the use of the drug mifepristone. States may not ban mifepristone based on disagreement with the FDA’s expert judgment on its safety and efficacy.”
Many legal eyes are also on a case before a federal judge in Jackson, Miss., involving the maker of a generic version of the drug.
GenBioPro Inc. argues that FDA approval of mifepristone must take precedence over any state ban and that the nullification of Roe v. Wade will not allow Mississippi to prevent it from selling the pills in the state.
That argument is the theory of “preemption,” said Amanda Allen, senior counsel and director of the Lawyering Project, an organization that represents abortion providers.
†[It’s] the idea that if the federal government stakes its claim to a jurisdiction, that federal law will trump state law,” Allen said.
In the Mississippi case, she said, that would mean that by regulating, approving and restricting mifepristone, the FDA has essentially “occupied the field and the state law to the contrary should be voided.” .”
Gostin agreed that the FDA may assert supremacy and that its scientific approval of abortion pills preempts any state law prohibiting or restricting that access.
“The US Department of Justice could challenge any state restriction on abortion medications based on the claim that the FDA sets a national uniform standard based on science,” he said. “States can’t choose which FDA-approved drugs they will and won’t allow.”
However, states might argue that things have changed since the annulment of Roe v. Wade.
Mississippi, for example, said in a filing to the contrary that “the legal landscape … has shifted overwhelmingly in favor of state power to regulate or ban abortion,” and that there was no evidence that Congress ever intended to stop the FDA. would limit the ability of states to regulate abortion.
“There are many arguments that states can make,” Rebouché said. “They can say that they are not trying to regulate security; they are trying to regulate morality or protect potential life.
“They might say that this was not the purpose of Congress to give the FDA this authority.”
Katie Watson, a constitutional scientist and medical ethicist at the Feinberg School of Medicine at Northwestern University, recently told the New York Times that the federal government’s ability to claim that FDA approval takes precedence over state laws is limited. “seen, traditionally, states get to regulate the practice of medicine.”
Problem not yet legally tested
Rebouché described the whole legal matter as some sort of “new incident,” she said, “with half the country going to try to ban an FDA-approved drug.”
While the matter is being discussed, she said it hasn’t really been legally tested yet. “So it would have pretty big impacts.”
If a federal court were to say that states cannot regulate or prohibit drug abortion, based on the preemption theory, that would certainly have national implications, Allen said.
“The real question is whether the Supreme Court, as it is currently constituted, would uphold such a ruling.”