This week we learned that the Supreme Court of the United States was about to overturn Roe vs. Wade, the 1973 case that guaranteed a person’s right to an abortion in the United States. If that happens, 23 states could ban abortion, NBC News reportsleaving people in these states with few options.
One option that is sure to create friction in the courts in the months to come is the abortion pill. Known on the market as mifeprex and misoprostol, the drugs—when taken in combination – are a safe and effective means (according to at the Kaiser Family Foundation, he has a 99.6% success rate in terminating a pregnancy at 10 weeks or less.
According to the Guttmacher Institute, this type of abortion counted for 54% of all layoffs at eight weeks or earlier in 2020, with its popularity growing every year. And in December of last year, the United States Food & Drug Administration (FDA) made the pills more accessible by deletion the requirement that they be prescribed in person. This opened up the possibility for patients to order the drugs by mail or obtain a prescription via a telehealth visit.
Yes deer reversed, however, this upward trend in use could come to a halt. If states have the power to ban abortion, could that extend to banning a federally approved drug or preventing it from entering the state?
The answer is complicated, says Wendy Parmet, Matthews Distinguished University Professor of Law at Northeastern. She says the issue underscores the ongoing tension between state jurisdiction and federal oversight in the US legal system, and it’s hard to predict who will win in future battles over access to abortion pills.
On the one hand, says Parmet, federal courts defer to the states when it comes to matters such as health and safety and the regulation of medicine, and that they could do the same when it comes to relates to abortion pills. “Sometimes, but not consistently, the courts will say we give deference to that,” she says.
At the same time, there is the issue of federal preemption.
“Where the federal government has authority, it can anticipate or reverse state actions,” Parmet said. “It does this all the time. It is certainly possible; for example, the FDA can make a drug illegal and a state cannot make it legal.
There are also examples of what Parmet calls a “truce” between the two parties, as in the case of cannabis. Cannabis is illegal under the Federal Controlled Substances Act. But states create their own laws on the sale and consumption of cannabis without federal consequences.
It’s unclear which jurisdiction the abortion pills will fall under — federal or state — because, as Parmet puts it, in the legal system, a case like this “goes both ways.” Some jurists have argued that the federal precedent will hold, Parmet says, and that if deer is overturned, states should not be allowed to create their own laws as they have done with cannabis.
But Parmet isn’t sure that will be the case under the current legal system, citing recent rulings such as the Supreme Court ruling. decision against the Occupational Safety and Health Administration’s federal vaccination mandate and a federal judge decision to cancel the Centers for Disease Control and Prevention (CDC) mask mandate.
“I can imagine a federal court saying that abortion is a major issue and the federal government cannot override state authority unless it’s absolutely explicit,” she says. “I think that would be wrong and disturbing, but I can imagine it.”
In the meantime, while states may not be able to ban the pills, they are working to make them less accessible. In response to the FDA’s loosening of drug regulations, state lawmakers have already proposed more than 100 restrictions on abortion pills in 22 states, according to the New York Times. Some states require the pill to be taken in the presence of a doctor, and some prohibit obtaining prescriptions by mail or via a telehealth appointment. These restrictions are legal, Parmet says, likely because they don’t conflict with FDA regulations.
Tougher measures, such as criminalizing abortion pills received in the mail, may be difficult to enforce. States aren’t likely to monitor what’s sent via FedEx or USPS, Parmet says. But when it comes to making the possession or prescription of abortion drugs illegal, that’s up in the air.
“There are strong arguments to say that a state cannot do it, but nothing is guaranteed at the moment,” she says.
Issues like residency raise even more questions. Can a state criminalize travel to another state to obtain an abortion or abortion medication? Can a person who lives out of state, or a pro-choice advocacy group, be sued for helping an out-of-state resident terminate a pregnancy? Can a person be prosecuted for shipping pills? “We don’t know how the courts are going to rule on these issues,” Parmet said.
The only certainty, it seems, is that it is impossible to predict what a post-deer America looks like.
“When the court renders its decision in [Dobbs v. Jackson Women’s Health Organization]it won’t be the end of the story,” says Parmet.