Existing Federal Laws Could Protect Abortion Rights Even if Roe Is Overturned
On this year’s anniversary of Roe v. WadeIt was the first time that many people wondered what it might be. The Supreme Court has heard arguments since in Dobbs vs. Jackson Women’s Health OrganizationIn December, legal experts predicted that the end would come. Roe. The Supreme Court’s most recent decision to not intervene in Texas’ so-called “heartbeat” law (S.B. 8), which prohibits most abortions within six weeks of birth, has not alleviated that concern. If we are correct about the Court’s signals and it does in fact overturn RoeAbout half of U.S. States will ban abortion by spring. This means that large portions of America could live in states that have criminalized almost all forms of abortion.
The federal structure is however the basis for federal preemption, which can be used to discredit some bans. The Constitution’s Supremacy Clause states that federal laws trump state laws. When federal and state laws are in conflict, or when regulations by the state are contrary to the Congressional intent of enacting federal legislation, preemption is applied. The supremacy of federal law is why the proposed Women’s Health Protection Act, to the extent Congress could pass it, would ensure that every person had access to abortion even though state laws said otherwise. There are regulations in the Federal Register that can be applied to the law of more than 20 states, which could make it difficult for them to outlaw abortion or significantly restrict its use if they don’t pass legislation. Roe This is a mistake.
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The Federal law that created the Food and Drug Administration (FDA), outlined its mission and established a system for drug reviews across the country. This system is extensive and onerous—requiring years or even decades of expensive medical research to prove that a drug is safe and effective before it can be sold in interstate commerce. Mifepristone was the FDA’s only approved drug to end a pregnancy. Moreover, the FDA has long imposed extra limits on mifepristone’s distribution: requiring people to pick up the drug at a health care facility, limiting who can prescribe it, and mandating extra counseling. (The drug is one of the 5% of drugs over which the FDA has exercised strict control despite mifepristone’s decades-long, excellent safety record.) After concluding that it was not necessary for patent safety, the FDA eliminated the requirement to dispense in person in December 2021. The agency allows doctors to send their patients mifepristone to certified pharmacies.
Nonetheless, numerous state laws control mifepristone’s prescription and dispensation much more strictly than the FDA. These laws directly conflict with the FDA’s safety decisions. In-person abortion is required in 19 states. However, the FDA deemed it not necessary. The FDA ruled that 32 states allow doctors only to order medication abortion, even though non-physician practitioners can prescribe it safely and effectively. Others are also available, including a Texas law called S.B. 4. This bans abortion by medication after seven weeks, even though it was approved by the FDA for the first ten weeks. This theory may preempt state laws and could be challenged in court.
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Congress created the FDA’s national drug review system with a purpose of establishing national uniformity. The Supreme Court has ruled previously that a manufacturer of drugs should not be forced to discontinue selling in any state where it is required by law to meet both federal and state requirements. A post-RoeThe argument could be extended to bans on all abortions or extremist laws, such as S.B. 8. By requiring states to permit medication abortions.
The blueprint for this preemption challenge has already been successful against a state’s attempt to ban, and then regulate, a new opioid more stringently than the FDA. In a 2014 case, a court invalidated the state’s regulation as preempted even though the state was acting with an established, evidenced-based safety interest. The different trajectories of opioid and abortion regulation—the former entering the market with less stringent control and the latter subject to the most restrictive measures—makes the preemption argument stronger for abortion, as do the decades of research providing mifepristone’s safety.
When you consider other federal laws, preemption is even more important. In response to Texas’s S.B. 8, Health & Human Services (HHS) Secretary Becerra announced that the Emergency Medical Treatment and Labor Act (EMTALA) requires emergency departments to treat pregnant patients and those experiencing pregnancy loss and that any contrary state law would be preempted. Thus, if doctors or hospitals refuse to provide medically necessary abortions—those to save the life or health of the mother—because of state abortion bans, those people can sue the hospitals and providers that refused them.
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EMTALA preemption may also have complex and interesting implications. Legal abortion is becoming less accessible, so more women will choose to terminate pregnancies by using abortion medication themselves, often without permission or professional supervision. The complications of self-managed abortion are rare and indistinguishable to incomplete miscarriage. An emergency room will see women who need additional help after self-management is completed in countries where abortion is not legal. EMTALA will require that doctors treat such patients even if they believe there is an abortion, or even if it requires the termination of an existing abortion.
These examples show potential at chipping away at state restrictions—repurposing the decades-long anti-abortion strategy of chipping away at abortion rights. While it might seem absurd to assume that all federal courts (especially the Supreme Court) would concur that state abortion laws should be preempted as we are arguing here, there is no way of knowing. But courts’ composition change, and not all judges in the United States would be hostile to these arguments. After the death of RoeThe future is bleak and the abortion rights movement needs to take bold, creative actions in order to ensure access to abortions in states that are hostile. If opioid manufacturers can convince a court to invalidate a state ban on a potentially addictive drug, surely there is reason to think a court might invalidate a similar ban on a drug with mifepristone’s outstanding safety record. HHS and FDA are able to help ensure this protection, by pointing out that state legislatures do not have all the authority to regulate abortion.