Washington -- The Justice Department has warned states not to ban federally approved drugs that induce abortions after Roe v. Wade was overturned by the Supreme Court. This signaled that the Biden administration may now be pursuing medication abortion as a means to protect abortion rights in states with restrictions.
The FDA approved the drug mifepristone, taken with another medicine, for termination of a pregnancy at 10 weeks gestation. This approval was made 22 years ago. The agency removed the requirement that the medication must be administered in person. Instead, it can be prescribed via telemedicine and sent to the patient by mail.
The high court's decision to end the constitutional right of an abortion late last month has placed the question of abortion access in state elected officials. This has allowed Republican-led legislatures the freedom to pass a series of new limits including restrictions on medication abortion and bans on all types of abortion.
The Guttmacher Institute, an organization that supports abortion rights, states that the physician who performs a medication abortion must be present at the time the drug is administered. Only doctors can provide mifepristone in 32 states, while certified health care professionals may prescribe it by the FDA.
However, Attorney General Merrick Garland stated that after the court's landmark decision, states cannot ban mifepristone because they disagree with the FDA expert judgment about its safety or efficacy. This suggests that the Justice Department could sue states who attempt to ban it.
Jessie Hill is a Case Western Reserve University law professor who studies reproductive rights. She said that one argument the Justice Department could use to defend access to mifepristone was that the FDA regulations are more effective than state laws limiting abortion medication, a concept called preemption.
Hill stated that the federal government had declared mifepristone safe and effective, and granted it a license to sell in all 50 states. Hill stated that no state can forbid it. This is one legal theory. The Department of Justice could sue the court on it.
Hill pointed out that there are many obstacles to such a strategy.
She said, "One of the difficulties is that you must show a clear conflicts, and it is not obvious there is one." It's very unsettling, but it could face some obstacles with a lawsuit such as that.
Federal court is currently testing the preemption argument. GenBioPro, a pharmaceutical company that makes generic mifepristone is challenging Mississippi officials' requirements before the drug can be distributed. Mississippi is one of the 13 states that have a trigger law. This bans almost all abortions in Mississippi, even medication abortions. The Supreme Court's decision to repeal Roe was also a boon for Mississippi.
Lawyers for the company wrote a letter to Jackson's federal district court judge stating that the ruling "neither abrogates FDA's authority under Supremacy Clause nor permits Mississippi to ban an FDA approved medication."
They wrote that "Mississippi’s current restrictions on Mifepristone already upset [the FDA] balance between risk mitigation, ensuring access to safe and effective medication," A ban would further distort this balance and run deeper into the Supremacy Clause.
Hill stated that the FDA approval is superior to state laws that conflict with it. Hill also suggested that the Justice Department could argue bans on abortion pills would violate the Dormant Commerce Clause. This clause states that interstate commerce cannot be regulated by states.
She said that "it's an unresolved question here." "There are cases that could point in both directions and another possible legal theory but it's not without difficulties," she said. The doctrine's main focus is to ban economic protectionionism.
The Justice Department is laying out its legal path to protect access to abortion medication. Lisa Monaco, Deputy Attorney General, stated last week that the department will be closely reviewing any new restrictions regarding abortion pills.
She said that she would not hesitate to examine each challenge and each statute passed in different states. "We will do everything in our power to protect the rights of citizens in those states," she stated at an event in Washington.
The President Biden also ordered the Department of Health and Human Services to make sure medications such as mifepristone are available "to the maximum extent possible" and that politicians can't interfere with the decisions between a woman and her physician. Xavier Becerra, Secretary of HHS, stated that the department would work to expand access to medication abortion. This includes collaborating with the Justice Department to ensure that states "may not ban medication abortion based on a disagreement or expert judgment by the FDA about the drug's safety, efficacy, and effectiveness."
Abortion rights advocates urge the Biden administration not to stop.
Nancy Northup, the president and CEO at the Center for Reproductive Rights, was a legal group representing Mississippi's only abortion clinic in the case that led to Roe being reversed. She said that Mr. Biden should declare an emergency of public health for abortion.
She wrote that such a move would allow HHS to assist patients in getting abortion care wherever they live, and also enable outside-of-state prescribing of abortion pills in states where the procedure is banned.
Northup also asked Becerra to declare an emergency of public health under the Public Readiness and Emergency Preparedness Act. This allows the health secretary, to issue a declaration that protects patients, providers and pharmacists who give abortion pills to women in restrictive countries from liability. She stated that the declaration would replace state abortion bans, which cover medication abortion.
She wrote that "We need a national standard to guarantee abortion access. Biden correctly stated that Congress must legislate." "But, in the meantime the administration must make the first step towards restoring national protections. Declare a state of emergency now and make sure that all Americans have access to medication abortion.
Jennifer Driver, Senior Director of Reproductive Rights for the State Innovation Exchange (an organization that works with progressive state legislators nationwide), believes the administration should provide more clarity on its plans to protect abortion access.
"It's not enough just to say that, we're going make sure people get abortion pills in their state. We won't restrict abortion pills to our states. She said that it was not enough to simply say this. How are you going do that? What mechanisms are you going to use? What is the plan?
She also dismissed repeated calls by Mr. Biden, Vice President Kamala Harris, for voters to vote for legislators at the federal level who will protect abortion rights. Calling it "defeating", for the administration to point out voting as the solution to abortion restrictions already enacted in GOP states following the Supreme Court decision.
She stated that she wanted to hear "a clear and concrete plan from the federal government." "Something beyond "vote."
Robert Legare contributed to the report.