Comment The three liberal Supreme Court justices, decrying their colleagues’ decision to eliminate the nation’s right to abortion, warned last month that returning this polarizing issue to the states would spark more controversy in the coming months and years. Among the looming disagreements, they noted: Can states ban drugs used to terminate pregnancy or prohibit their residents from traveling elsewhere to do so? “Rather than removing the court from the abortion issue,” Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan wrote in dissent, “the majority puts the court at the center of the coming ‘interjurisdictional abortion wars.’ “ His reversal Roe v. Wade after almost 50 years it is expected to spark a new one A series of legal challenges with little precedent, observers say, are further unsettling the nation’s bitter political landscape and deepening chaos as Republican-led states move quickly to limit access to reproductive care. It is possible, if not likely, that one or both of these questions will eventually return to the high court. “Judges and scholars, and most recently the Supreme Court, have long argued that abortion law will become simpler if Roe is overturned,” law professors David S. Cohen, Greer Donley and Rachel Rebouché wrote in an op-ed draft academic article cited by dissenters. judges, “but that is woefully naive.” As a result of the decision in Dobbs v. Jackson Women’s Health Organization, abortions — both surgical procedure and medication — are banned or mostly banned in 13 states. Several others are expected to follow in the coming weeks. White House Talks on Declaring Abortion Access a ‘Health Emergency’ The Biden administration has pledged to ensure access to abortion drugs, which are used in more than half of all pregnancies terminated in the United States, and to prohibit states from preventing their residents from traveling out of state for care. But a month after Dobbs decision, administration officials are still debating how they can fulfill that promise beyond the president’s executive order to protect access. A White House meeting Friday with public interest lawyers was designed to encourage legal representation for those seeking or offering reproductive health services. Democratic leaders and liberal activists they called on President Biden to take bolder action, especially on medication abortion. Illinois Gov. JB Pritzker (D) said in an interview that he directly urged the president to make clear that abortion providers in Democratic-controlled states should be able to ship pills to patients anywhere in the country, regardless of whether the patient’s state has enacted a ban or not. Pritzker advised the president to assert federal authority over the U.S. mail system, he said, and make it clear that no one would be prosecuted for prescribing or receiving them. “People should be able to get their medication in the privacy of their own home, even if they live in a state where the procedure isn’t allowed,” Pritzker added. saying Biden seemed “very receptive” to the idea. The White House did not immediately respond to a request for comment on Pritzker’s characterization of the conversation. Republican attorneys general are bracing for a court battle, Sen. Roger Marshall (R-Kan.) said, accusing Biden and the White House of showing “consistent disrespect for the law and the constitution and the Supreme Court.” “We predict he will do that,” Marshall said. Anti-abortion lawmakers want to prevent patients from crossing state lines Already, the maker of the abortion drug mifepristone has sued the state of Mississippi and has promised additional lawsuits will be filed in other states. It remains to be seen whether the Biden administration will intervene in one of these cases or file its own legal challenges. The Justice Department has activated a “reproductive rights task force” to monitor and push back against state and local efforts to further restrict abortion, but officials have not fully detail their plans. Attorney General Merrick Garland said during Friday’s event at the White House that “when we learn that states are violating federal protections, we will consider every tool at our disposal to assert those protections — including filing affirmative action, filing declarations of interest and private intervention proceedings.” The Food and Drug Administration approved mifepristone in 2000, deeming it safe and effective for terminating an early pregnancy. The drug, which is now approved for the first 10 weeks of pregnancy, is used with a second drug, misoprostol, to induce an abortion. Among the unresolved questions is whether FDA approval of the drug preempts state action. Legal experts say it’s unclear whether the federal government would succeed in challenging state restrictions on abortion drugs and that it will depend on how those measures are written. Garland said soon after the Supreme Court overturned Roe that states cannot ban mifepristone “based on a disagreement with FDA expert judgment.” The agency is charged with evaluating the safety and effectiveness of drugs, and federal law generally preempts state law when two measures conflict. Melissa Murray, a The New York University law professor said it’s important for Garland to make a strong statement, but it’s not a panacea in uncertain legal terrain. “Although the administration has said that states cannot ban mifepristone on the grounds that it is somehow unsafe, that does not mean they cannot ban it for other purposes. That’s an open question,” said Murray, who has written extensively on reproductive rights. An administration official said the White House and the FDA realize that if states succeed in banning the abortion pill or imposing strict restrictions, the federal government’s authority over a range of drugs could be undermined. “If states want to ban vaccines, can they?” asked the official, who spoke on condition of anonymity because they were not authorized to speak on the matter. “What if a country was run by Scientologists?” the official said, referring to the movement that has long opposed psychiatric drugs. The FDA picked up some restrictions on abortion pills in December, allowing providers to mail drugs to states that do not ban telemedicine abortions. At least 19 states ban the use of telehealth for medication abortion, and Republican lawmakers in more than half of those states have introduced or passed legislation to ban or severely restrict medication abortion, according to the Guttmacher Institute, a research group that advocates abortion rights. . Abortions are now banned in these states. See where the laws have changed. The federal case in Mississippi, filed before the Supreme Court’s ruling in June Dobbsoffers a window into upcoming legal battles over access to abortion pills. GenBioPro, which sells mifepristone, initially sued Mississippi in 2020 over additional state-imposed requirements, including a waiting and counseling period. The office of Mississippi Attorney General Lynn Fitch (R) said in recent court filings that the Supreme Court’s ruling allowing states to ban abortions strengthens the state’s position. The case is not about the safety of the drug but about the state’s authority over abortions “regardless of the means by which the abortion is induced,” Fitch’s office wrote. Mississippi’s enabling law, which took effect in July and bans nearly all abortions, does not distinguish between surgical or medication-induced abortions, the office said. Gwyn Williams, an attorney for GenBioPro, said the FDA has the authority to decide which drugs are safe. Individual states, he said, “are failing to legislate the authority that Congress granted the FDA.” The company, he said, plans to file additional legal challenges in other states. Legal experts point to one of the few cases where similar questions are raised. In 2014, Massachusetts tried to ban an FDA-approved opioid called Zohydro. Then-FDA Commissioner Margaret Hamburg recently recalled that she was deeply concerned about “the logic and the precedent it could set.” At that time, warned Massachusetts officials that the move could prompt other states to ban “such vital medical products as birth control or RU-486,” the abortion pill. A District Court judge sided with the opioid maker and said the FDA’s approval preempts state law. Massachusetts withdrew its regulations and did not appeal, meaning other judges are not required to follow the same legal reasoning. Lawrence O. Gostin, director of Georgetown University’s O’Neill Institute for National and Global Health Law, said FDA approval of drugs, including in the context of abortion, “should supersede state restrictions” because the agency is responsible for setting a national uniform standard for what medicines patients can access in the United States. The Biden administration has an “extremely strong legal claim,” he said. “Any other decision could open a floodgate of states making their own choices about FDA-approved drugs, and that would be devastating to the health and safety of Americans.” Even so, he said, the same conservative Supreme Court majority that struck down the constitutional right to abortion “could simply say that states license medical providers and can make judgments about what those providers can and cannot do. providers”. Ed Whelan, a fellow at the conservative Center for Ethics and Public Policy, said the federal preemption does not mean states are prohibited from dictating how — or if — certain drugs can be used. “Suppose the FDA approved a drug for use in physician-assisted suicide,” he recently wrote in National Review. “Why would anyone imagine that FDA approval…
