Conflict over drug abortion could renew the state vs. debate. Federal

The Supreme Court seems ready to overturn Rowe vs. WadeA landmark decision that guarantees the constitutional right to abortion, proponents of reproductive rights are considering new ways to protect nationwide access to the system.

One strategy involves preserving the availability of drugs used to initiate abortion in states that are otherwise ready to restrict access. Such a move would require that federal law prevail over a state – an idea known as preemption.

“Federal prep for abortion drugs is a highly innovative legal strategy with considerable uncertainty,” said Lawrence Gostin, professor of world health law at Georgetown University. “Can’t wait to tell the court how it will play out.”

Some state lawmakers who oppose abortion have stormed bills to limit or ban drug abortion. Most legislation has not achieved traction, although the South Dakota legislature has approved a measure that bans pills. It is now trapped in a legal challenge. But if the Supreme Court overturns or obstructs RoweActivists whose goal is to ban almost all abortions can quickly close the drug abortion gap, fearing patients will still be able to get pills from outside the state.

Thirteen states have restrictive “trigger laws” on books that if started Rowe In the past they have changed drastically, but with few exceptions will effectively ban abortion as a whole.

Also, some conservative states have gone so far as to restrict access before the High Court decision. Texas, which has a trigger law, also enacted a law last year that prohibits abortion after detecting fetal or fetal cardiac activity, usually within about six weeks and often people realize they are pregnant. That 2021 law, which the Supreme Court refused to block, is effective and has dramatically reduced abortions in the state. A new Oklahoma law, effective May 25, defines life at the beginning of fertilization and prohibits most abortions.

Medication in the first 10 weeks of pregnancy is an alternative to abortion and involves taking two pills: mifepristone, a drug that blocks the hormones needed for pregnancy, then misoprostol, which helps to empty the uterus. By 2020, drug abortion has become the most common method, accounting for more than half of all U.S. abortions. Most abortions are performed at 13 weeks or earlier of pregnancy.

Drug abortion was found in the US in 2000 when mifepristone was approved by the FDA. It is available for use in 50 states.

Some legal and drug regulatory experts argue that since the FDA is a federal agency responsible for protecting public health by ensuring the safety, efficacy, and safety of human drugs, states will not have the power to revoke approval stamps and outlaw abortion. Pills

In other words, Rachel Reebouche, an interim dean at Temple University’s Beasley School of Law and an expert in reproductive health law, said: “It’s a pretty fancy argument for an abortion site, and it hasn’t been tested, but I believe it’s possible to argue.” He wrote an article on the possibilities.

The judiciary can go to court to intervene against a state or group of states that prohibits or restricts the use of mifepristone for drug abortion.

Gostin, a Georgetown law professor, said he had spoken to the Biden administration about a possible move to ensure that people still had access to abortions.

“I do not know if the administration will go through this. But I think there is a reasonable possibility that if a state were punitive and banned every avenue for legal abortion, the judiciary would work, “Gostin said.

Some Democratic lawmakers, including Sen. Elizabeth Warren (D-Mass.), Support the idea.

“I’m in favor of the administration taking every possible opportunity to make drug abortion more widely available,” Warren said.

But, during a recent Senate Democratic press conference on reproductive rights, Sen. Patty Murray (D-Wash.) Became optimistic about how far the Biden administration’s executive measures to protect access to abortion could be.

“We want the Biden administration to determine what they can do,” he said, but added that “they are limited.”

The White House did not say what executive or legal action could be considered. President Joe Biden said it would be up to elected officials to protect “a woman’s right to choose” if the landmark case was overturned the day after the Politico Supreme Court’s draft opinion was leaked.

Peter Pitts, a former FDA associate commissioner during the George W. Bush administration, argued that the FDA’s authority to favor a state is justified because allowing a state to ban the use of legally approved products could lead to inconsistent policy on other drugs.

“I don’t think an FDA-approved drug should be available in New York and not in Mississippi. It leads to chaos, “Pitts said.” Today we’re talking about mifepristone, but tomorrow it could be another drug. “

A problem with the preposition argument, however, is that there are limited examples in the case of drugs. Only experts in previous court cases were aware of Massachusetts’ attempts to stop the use of an opioid painkiller, Zohidro. A U.S. district court ruled in 2014 that a drug approved by the FDA could not be banned.

Pitts said he thinks it is possible to hold this position if the judiciary and a state are confronted with the use of mifepristone.

“No U.S. citizen has the right to be barred from accessing FDA-approved drugs,” Pitts said.

GenBioPro, the drug maker that makes the generic version of mifepristone, filed a lawsuit in Mississippi in 2020 when the state imposed restrictions on the distribution of abortion pills. That state law requires patients to travel to the only abortion clinic in the state and to take the pill during multiple visits.

In a preliminary court filing, GenBioPro argued that Mississippi laws restricted the use of mifepristone “in conflict with federal law and therefore prohibited.” The lawsuit is ongoing, and the drug maker has not responded to a request for comment.

So, if the Biden administration does not adopt the Prevention Mantle, can abortion advocacy groups such as Planned Parenthood or the American Civil Liberties Union do so?

Planned Parenthood did not respond to a request for comment, with an ACLU worker telling KHN that the agency would look into “every legal way to protect people’s ability to take care of essential abortions.”

This, of course, is possible, Gostin said, unless an organization has a legal position, such as representing a woman who was banned from ordering abortion drugs. A citizen or a group of citizens can also file a lawsuit if they are not able to access drugs.

Still, states that would like to limit abortion pills would argue that they are regulating treatment practices that are good within their capabilities, Reebouche said.

Nineteen states have already banned the prescription of drugs through telehealth, although the FDA began permitting during epidemics and recently upheld the policy. Instead, the healthcare provider must be present while administering the medication.

Clark Forsyth, a senior legal adviser at American United for Life, a national anti-abortion advocacy group, said his organization would fight the Biden administration if it tried a preemptive argument, arguing that states have the power to regulate drugs and medical practices. .

“We’ll kill them in court,” Forsyth said.

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