After the US Supreme Court’s ruling last month, states that have restricted abortions have made it clear that this also applies to medication abortions – a method now used in more than half of 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 US Food and Drug Administration (FDA). It also means it’s very likely the nation’s highest court isn’t done with the abortion issue. “It would almost certainly end up back at the Supreme Court, and there’s no telling how the conservative justices will rule,” said Lawrence Gostin, 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 two-pill regimen is used for medical abortion — mifepristone and misoprostol — which is approved for use in the first 10 weeks of pregnancy. Mifepristone, taken by mouth, stops an existing pregnancy from progressing by dilating the cervix and blocking the effects of the hormone progesterone, while misoprostol, taken 24 to 48 hours later, works to empty the uterus by causing cramping and bleeding, similar to an early miscarriage. . The use of the drug can be self-administered at home and no medical intervention is required afterwards. But the drugs are subject to restrictions at both the state and federal levels. WATCHES | Renewed focus on abortion pills after US Supreme Court ruling:
Renewed focus on abortion pills after US Supreme Court ruling
Kate Kelly, with the advocacy group Shout Your Abortion, says many groups in the US are working to educate people about the availability of abortion drugs after Roe v. Wade. For years, the FDA required people 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 have to be prescribed by a certified health care provider. With some states now banning abortion drugs, pregnant women in those jurisdictions will either have to travel to another state where abortion remains legal or have the pills mailed to them from the same states. This new battleground had begun to form before the Roe decision, as some states had made the legally nebulous decision to ban the practice of telemedicine abortions and bar residents from receiving abortion drugs by mail. However, enforcing such laws can face challenges.
Enforcement challenges
Targeting people’s mail, for example, would be difficult for state authorities, which do not have jurisdiction with the U.S. Postal Service, an independent federal agency, explained Rachel Rebouché, an expert on reproductive health law and interim dean of law. Beasley School of Temple University. in Philadelphia. “States don’t have the power to just raid the mail without a warrant,” he said. “I think it’s difficult [to enforce]. States could obtain warrants. they could potentially police the mail. But that’s hard – and they probably know that.” It is possible that states will treat abortion drugs like illegal drugs, going after people for possession. However, many anti-abortion groups have said they do not support criminalizing abortion patients. (CBC) States that ban drugs could also seek to prosecute across borders. A draft paper co-authored by Rebouché — titled “The New Abortion Battleground” and to be published in the Columbia Law Review — raises the issue, suggesting that “out-of-state providers, as well as out-of-country, could be guilty of state crimes by offering these telehealth services”. “In a post-Roe world, anti-abortion states will struggle to establish jurisdiction over these out-of-state providers, while pro-abortion states will seek to shield their providers from out-of-state prosecution,” its 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 prohibited. But Gostin said it would be extremely difficult for a state to charge or penalize a health care provider who prescribes abortion drugs in another state. “States have no jurisdiction outside their state borders.”
Federal court case to ban pills
As the nation’s abortion laws continue to change, individual states could eventually find themselves in legal battles over FDA approval of the abortion drug. Shortly after the Supreme Court’s decision, 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 seek to use their statutory authority to protect and preserve access to reproductive care,” she said. “Specifically, the FDA has approved the use of the drug mifepristone. States cannot ban mifepristone because of a disagreement with the FDA’s expert judgment about its safety and effectiveness.” States that have restricted abortion have made it clear that this also applies to medication abortion — a method used in more than half of abortions in the U.S. (Jose Luis Magana/The Associated Press) Many legal eyes are also locked on a case before a federal judge in Jackson, Miss., involving the maker of a generic version of the drug. GenBioPro Inc. argues that the FDA’s approval of mifepristone should override any state ban, and the overturning of Roe v. Wade does not allow Mississippi to block the sale of the pills in the state. That argument is the “advance” theory, 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 has staked its claim in an area of law, that federal law will trump state law,” Allen said. In Mississippi’s case, he said, that would mean the FDA, by regulating, approving and placing restrictions on mifepristone, has effectively “taken the field and that state law to the contrary should be invalidated.” Gostin agreed that the FDA can claim supremacy, and that its scientific approval of abortion pills should preempt any state law that prohibits or limits that access. “The U.S. Department of Justice could challenge any state restrictions on abortion drugs based on the claim that the FDA is setting a national uniform standard based on science,” he said. “States cannot pick and choose which FDA-approved drugs they will and will not allow.” A nurse at a Planned Parenthood clinic in Fairview Heights, Ill., participates in a video conference with a patient seeking a medication-based abortion. (Jeff Roberson/The Associated Press) States could argue, however, that things have changed since Roe v. Wade was overturned. Mississippi, for example, said in an opposing filing that “the legal landscape … has shifted overwhelmingly in favor of state power to regulate or prohibit abortion” and that there was no evidence that Congress ever intended the FDA to limit the ability of states to regulate abortion. “There are many arguments that states can make,” Rebouché said. “They can say they’re not trying to regulate safety; they’re trying to regulate morality or protect potential life. “They could say that was not the intent of Congress to give the FDA that authority.” Katie Watson, a constitutional scholar 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 assert that FDA approval overrides state laws is limited, “Traditionally, states have to regulate the practice of medicine”.
The issue has yet to be tested legally
Rebouché described the whole legal issue as a kind of “new occurrence,” she said, “where half the country is going to try to ban an FDA-approved drug.” While the issue is being discussed, he said it has yet to be legally tested. “So it would have very huge consequences.” If a federal court said states could not regulate or ban medication abortions, based on the preemption theory, that would certainly have national implications, Allen said. “The real question is whether the Supreme Court, as currently constituted, would uphold this kind of ruling.”
