FDA Abortion Pill Policy May Preempt State Restrictions, Say Legal Scholars: 'We Need to Push the B

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FDA Abortion Pill Policy May Preempt State Restrictions, Say Legal Scholars: ‘We Need to Push the Boundaries and See What Sticks’
6/2/2022 by Carrie N. Baker
Legal scholars and advocates are questioning the constitutionality of state-level restrictions on abortion pills.


Mifepristone is used in combination with another medication—misoprostol—to safely and effectively end early pregnancy. (Robin Marty / Flickr)

In December of 2021, the FDA lifted some of its burdensome restrictions on the abortion pill mifepristone, including the requirement that healthcare providers must meet in-person with patients to dispense the medication. Nineteen states, however, continue to impose in-person dispensing requirements and many impose other restrictions that go beyond FDA requirements, like only allowing physicians to dispense the medication and requiring multiple in-person visits to obtain the medication. In October, Texas banned clinicians from prescribing abortion pills after seven weeks of pregnancy—three weeks before the current FDA time limit of 10 weeks. Legal scholars and advocates are questioning the constitutionality of these additional restrictions on abortion pills.

University of Pittsburgh law professor Greer Donley argues that state bans of an FDA-approved abortion medication may violate the supremacy clause of the U.S. Constitution. The supremacy clause establishes that federal laws take precedence over state laws that are in conflict, and prohibits states from interfering with matters that are exclusively entrusted to the federal government—such as the regulation of medications. “To get an FDA approval for a drug, it can take decades and can cost hundreds of millions of dollars to produce the amount of research and data that’s required,” said Greer. “That comes with a license to sell the product in 50 states. If states could just ban different types of products that are FDA approved, you can imagine that pharmaceutical companies would be quite upset about that because that is really curtailing their market for their product, which they worked so hard to be able to sell.”

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“It gets a little bit more complicated when we start thinking about the post-Roe world and abortion bans. I think if a state were to pass a law that specifically banned mifepristone or misoprostol that would be preempted,” said Greer. “But I think it’s a really hard question about whether or not a state’s general abortion ban is preempted. There are some counterarguments as to why that is different than a state banning an FDA-approved drug. But still, we think that there are arguments to suggest a state cannot do that. And if that were to be successful, then theoretically, it would mean it would create an exception to a state abortion ban for medication abortion. That would say you have to allow the sale and use of medication abortion, which would mean abortion through 10 weeks that is done with pills.”
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“Abortion exceptionalism exists. The court could easily come up with reasons to say that this is different. It is a really unique case. But at the same time, the anti-abortion movement has tried a lot of stuff. Sometimes it works and sometimes it doesn’t. I think the abortion rights movement needs to take on that strategy. We need to try a lot of new things. We need to be creative. We need to push the boundaries and see what sticks.”

https://msmagazine.com/2022/06/02/state-restrictions-abortion-pills-fda-mifepristone/