OIn the wake of the Supreme Court’s ruling that struck down the nation’s abortion rights, Attorney General Merrick Garland released a statement proclaiming that the Justice Department disagreed with the verdict. Along with promising to “work tirelessly to protect and advance reproductive freedom,” he pointed to a potential avenue for the legal fight for abortion rights.
“[W]We stand ready to work with other branches of the federal government that seek to use their legitimate powers to protect and preserve access to reproductive care,” he said. “In particular, the FDA has approved the use of the drug mifepristone. States cannot ban mifepristone due to disagreement with the FDA’s expert judgment on its safety and efficacy.”
Attorney General Merrick Garland at the Department of Justice Tuesday, May 3, 2022 in Washington, DC.
Jabin Botsford—The Washington Post/Getty Images
Mifepristone has been approved by the US Food and Drug Administration (FDA) for over 20 years and is permitted for use during the first 10 weeks of pregnancy. It is taken in a regimen with the drug misoprostol, and together the two drugs can safely induce an abortion. More than half of abortions in the United States are medical abortions.
Until recently, mifepristone had to be dispensed in person, but in December the FDA removed that requirement, allowing the drug to be prescribed via telehealth and shipped by mail. While this change has expanded access to the drug, there have also been efforts to reduce it. In September, for example, Texas Governor Greg Abbott signed SB4, which banned abortion drugs after seven weeks and banned them from being mailed into the state. At least 19 states ban the use of telemedicine visits for medical abortion despite FDA clearance, and many still require a doctor to prescribe the drug, even though the FDA does not.
Read more: What to know about post-roe abortion pills
Garland’s mention of the drug being approved by the FDA is a nod to the federal preemption argument, says Rachel Rebouché, acting dean of Temple University Beasley School of Law. This argument is based on the premise that where federal and state laws conflict, federal law prevails. In this case, that would mean that a safety and efficacy determination by the FDA, a federal agency, would take precedence over a state’s stricter restrictions on a given drug.
But while it’s clear that states can’t legalize drugs that the FDA doesn’t approve, says Greer Donley, an assistant professor at the University of Pittsburgh School of Law, the legal issue here lies in the reverse scenario. . “The argument is that the FDA regulation of mifepristone isn’t just the national floor, which everyone agrees with,” Donley says. “The question is whether the FDA regulation is also the national cap. Can a state regulate the drug more stringently than the federal government? »
Doses of mifepristone, the abortion pill, and misoprostol, which is taken the next day to induce cramping and bleeding to empty the uterus, are pictured at Dr. Franz Theards Women’s Reproductive Clinic in Santa Teresa, New Mexico, May 7, 2022.
Paul Ratje—The Washington Post/Getty Images
If a Court Decided FDA Regulation is the national cap, and that no state can regulate drugs more stringently than the federal government, then even states with complete abortion bans—and, according to the Guttmacher Institute, 26 states are likely or certain to ban abortion. abortion without deer — should make exceptions for medical abortions.
For this reason, Donley was happy to hear Garland and President Joe Biden refers to mifepristone in their responses to Dobbs decision. “It indicates that they are aware of the theory and support it,” says Donley. “The question is whether they’re actually going to go ahead and take legal action, and whether they’re going to support those lawsuits in the future.”
Read more: What the Supreme Court’s decision on abortion means for your state
Medical abortions may be the next frontier in the legal fight for abortion rights across the country. GenBioPro, the generic maker of mifepristone, previously filed a lawsuit based on the preemption argument in federal court against Mississippi over its ban on abortion telemedicine. Earlier this month, the judge said he would consider waiting for the Supreme Court to issue its Dobbs decision before deciding how to proceed.
Rebouché says she expects more people to turn their attention to mifepristone and whether states can legally ban the use of abortion pills now that deer officially fell. “Medical abortion is going to take up a lot of our thinking, our time and our advocacy on both sides of the issue,” adds Rebouché. “I think what a lot of people think is that’s a pretty key aspect of what abortion services actually look like in the future.”
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