States Can’t Ban Abortion Pills, U.S. Attorney General Says

OAfter the Supreme Court ruling that ended the nation’s right to choose, Attorney General Merrick Garland made a statement declaring that the Justice Department was against the decision. In addition to vowing to “work tirelessly to protect and advance reproductive freedom,” it indicated a potential avenue for the legal fight for abortion rights.

“[W]e stand ready to work with other arms of the federal government that seek 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 medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”

Merrick Garland, Attorney General, at the Department of Justice, Tuesday May 3, 2022 in Washington DC.

Jabin Botsford—The Washington Post/Getty Images

The U.S. Food and Drug Administration has approved Mifepristone for over 20 years. It is allowed to be used during the first 10 week of pregnancy. Mifepristone can be taken together with misoprostol, which is a combination drug that safely induces an abortion. In the United States, more than half of all abortions involve medication.

Mifepristone was only available in-person until recently. However, the FDA removed that requirement in December and allowed the drug to now be sent by telehealth. This has allowed for greater access, but there have been calls to decrease it. Texas Governor Greg Abbott approved SB4, which bans abortion-inducing drugs within seven weeks. The bill also prohibits them being mailed to Texas. The FDA allowed telemedicine to be used for medical abortion in 19 states. However, many require that the doctor prescribe the medication.

Learn More: How to Learn About Post-Roe Abortion Pills

Garland’s mention of the FDA approval of the drug is a nod toward the federal preemption argument, says Rachel Rebouché, interim dean of Temple University Beasley School of Law. This argument rests on the assumption that federal laws prevail over state laws where they conflict. In this case, that would mean a safety and efficacy determination by the FDA, a federal agency, would take precedence over a state’s tighter restrictions on a given drug.

But while it’s clear that states cannot legalize drugs that the FDA does not approve, explains Greer Donley, assistant professor at the University Pittsburgh Law School, the legal question here lies in the reverse scenario. “The argument is that FDA regulation of mifepristone is not only the national floor, which everybody accepts,” Donley says. “The question is whether the FDA’s regulation is also the national ceiling. Can a state regulate the drug more harshly than the federal government?”

Pictured at the Dr. Franz Theards Womens Reproductive Center in Santa Teresa (New Mexico) on May 7, 2022, is Misoprostol and Mifepristone. These pills cause cramping and bleeding and empty the uterus.

Paul Ratje—The Washington Post/Getty Images

A court could decide FDA regulations Is the national ceiling, and that no state may regulate drugs more strictly than the federal government, then even states with total state abortion bans – and, according to the Guttmacher Institute, 26 states are likely to or certain to ban abortion without Roe — would have to make exceptions for medical abortions.

Donley was happy to hear Garland’s story. President Joe Biden reference mifepristoneTheir responses to the Dobbs ruling. “It indicates that they are aware of the theory, and that they support it,” Donley says. “The question is whether or not they’re actually going to move forward and file a lawsuit, and whether they’re going to support these lawsuits moving forward.”

Learn More: What the Supreme Court’s Abortion Decision Means for Your State

The legal battle for the right to abortion may move onwards with medical abortions. GenBioPro was the generic producer of mifepristone and had previously filed suit in federal court on preemption grounds against Mississippi over its ban on using telemedicine to perform abortions. The judge stated earlier this month that he might wait for the Supreme Court’s decision. DobbsBefore you decide how to proceed, it is important that you make a decision.

Rebouché says she expects more people to turn their attention to mifepristone and the question of whether states can legally outlaw the use of abortion pills now that RoeIt has now been declared dead. “Medication abortion is going to take up a lot of our thinking and time and advocacy on both sides of the question,” Rebouché adds. “I think what a lot of people are thinking is it’s a pretty key aspect to what abortion services actually look like moving forward.”

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