The administration of U.S. President Joe Biden has indicated it will try to prevent states from banning a pill used for drug abortion in light of the Supreme Court ruling overturning the historic Roe v. Wade, indicating a major new legal struggle.
The administration could argue in court that the approval of mifepristone, one of the pills used for medical abortions, by the U.S. Food and Drug Administration (FDA), anticipates state restrictions, the which means that federal authority overrides any state action.
The same argument has already been raised by Las Vegas-based GenBioPro Inc., which sells a generic version of the pill, in a lawsuit that challenged Mississippi’s restrictions on drug abortion.
More than a dozen states plan to ban abortion almost entirely with the precedent of Roe v. Wade turned around. In a startling ruling, the Conservative-majority Supreme Court overturned Roe on Friday, saying there is no right to abortion in the U.S. Constitution.
The court, in a 6-3 ruling, upheld a Republican-backed Mississippi law banning abortion after 15 weeks of pregnancy. The vote was 5-4 to annul Roe v. Wade, with Chief Conservative Judge John Roberts writing separately to say he would have maintained Mississippi law without taking the extra step of completely erasing Roe’s precedent.
States will likely face other difficulties in enforcing medication abortion restrictions because women can still get the pills online or in other states. The FDA allows abortion with medications during the first 10 weeks of pregnancy.
Biden said in statements following the Supreme Court decision that the government would try to protect access to abortion with drugs, saying efforts to restrict it would be “wrong and extreme and out of touch with most northerners.” Americans “.
Attorney General Merrick Garland was more explicit about what the Justice Department is looking at, saying in a statement, “States cannot ban mifepristone because of disagreement with the FDA’s expert judgment on its safety and effectiveness.”
A practicing nurse works in an office of a Planned Parenthood clinic while the medication containers used to end an early pregnancy sit at a nearby table in Fairview Heights, Illinois, in October 2021. ( Jeff Roberson / The Associated Press)
Turbid preemption law
Mifepristone was approved for use in abortions by the FDA in 2000, long after Roe’s decision in 1973. The pill, also known as RU 486, blocks progesterone, the hormone that keeps the pregnancy, while the other drug used, misoprostol, induces uterine contractions.
Greer Donley, a professor at the University of Pittsburgh Law School who is an expert on reproductive rights, said the administration’s position “shows that they understand the interests and are willing to seek new ideas.”
Even before Roe was overturned, states imposed restrictions on access to the pill. There are 19 states that require women to make a face-to-face visit to get the drug, according to the Guttmacher Institute, a research group that supports the right to abortion.
The FDA does not require an in-person meeting.
Legal experts say the preemption law is murky because Congress has never explicitly said FDA approval goes beyond state law, as it has done in the context of medical devices. Therefore, it would be left to the courts to decide the issue under a theory known as “implicit preemption”.
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The decision of the U.S. Supreme Court to overturn Roe v. Wade is an expected victory for some Americans and a terrifying loss for others. The country will soon ban or ban abortion in 25 states.
The widespread availability of medical abortion in states that want to restrict or ban the procedure would be a major setback for anti-abortion activists who have long been trying to ban abortion directly.
Attempts to challenge state restrictions could stall the Supreme Court, not only because the Conservative 6-3 majority has shown opposition to abortion rights, but also because judges are often skeptical about federal preemption demands.
With Roe repealed, states would also have more leeway to argue that they have a separate interest in preventing abortions based on moral objections to abortion.