U.S. President Joe Biden’s administration indicated it will seek to prevent states from banning a pill used for medication abortion in light of the Supreme Court ruling overturning the landmark Roe v. Wade ruling, signalling a major new legal fight.
The administration could argue in court that the U.S. Food and Drug Administration’s (FDA) approval of mifepristone, one of the pills used for medication abortions, pre-empts state restrictions, meaning federal authority outweighs any state action.
That same argument has already been raised by Las Vegas-based GenBioPro Inc., which sells a generic version of the pill, in a lawsuit challenging Mississippi’s restrictions on medication abortion.
More than a dozen states plan to almost totally ban abortion with the Roe v. Wade precedent upended. In a stunning 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 that bans abortion after 15 weeks of pregnancy. The vote was 5-4 to overturn Roe v. Wade, with conservative Chief Justice John Roberts writing separately to say he would have upheld the Mississippi law without taking the additional step of erasing the Roe precedent altogether.
States will likely face other difficulties enforcing restrictions on medication abortion because women are still likely to be able to obtain the pills online or in other states. The FDA allows medication abortion in the first 10 weeks of pregnancy.
Biden said in remarks after the Supreme Court ruling that the government would seek to protect access to medication abortion, saying efforts to restrict it would be “wrong and extreme and out of touch with the majority of Americans.”
Attorney General Merrick Garland was more explicit about what the Justice Department is eyeing, saying in a statement: “States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”
Law on pre-emption murky
Mifepristone was approved for use in abortions by the FDA in 2000, long after Roe was decided in 1973. The pill, also known as RU 486, blocks the pregnancy-sustaining hormone progesterone, while the other drug used, misoprostol, induces uterine contractions.
Greer Donley, a professor at the University of Pittsburgh School of Law who is an expert on reproductive rights, said the administration’s stance “shows that they understand the stakes and are willing to pursue novel ideas.”
Even before Roe was overturned, states imposed restrictions on access to the pill. There are 19 states that require women to make an in-person visit to obtain the drug, according to the Guttmacher Institute, a research group that supports the right to an abortion.
The FDA does not require an in-person meeting.
Legal experts say the law on pre-emption is murky because Congress has never said explicitly that FDA approval trumps state law, as it has done in the context of medical devices. Therefore it would be left to courts to decide the question under a theory known as “implied pre-emption.”
Wide availability of medication abortion in states that want to restrict or ban the procedure would be a major setback to anti-abortion campaigners who have long sought to ban abortion outright.
Attempts to challenge state restrictions could run aground at the Supreme Court, not only because the 6-3 conservative majority has shown its opposition to abortion rights but also because the justices are often skeptical about federal pre-emption claims.
With Roe overturned, states would also have more leeway to argue they have a separate interest in preventing abortions based on moral objections to abortion.