In a post-Roe America, abortion drugs loom as the next legal battleground | Radio-Canada News

The annulment of Roe v. Wade has sparked legal battles across the United States as each state’s trigger laws restrict access to abortion procedures. But the legal status of drugs used to terminate a pregnancy could see the fight enter an even murkier legal realm.

Since the US Supreme Court ruling last month, states that have restricted abortion have made it clear that this also applies to medical abortion – a method now used in more than half of all abortions in the country.

But it has raised questions about the enforcement of these laws and whether states actually have the power to ban drugs approved by the US Food and Drug Administration (FDA).

It also means that it is very likely that the highest court in the land is not done with the issue of abortion.

“It would almost certainly end up in the Supreme Court, and it’s unclear how the conservative justices will rule,” said Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law at the Georgetown University in Washington, DC.

2 drugs used for medical abortion

A two-pill regimen is used for medical abortion – mifepristone and misoprostol – approved for use in the first 10 weeks of pregnancy.

Mifepristone, taken by mouth, prevents an existing pregnancy from progressing by dilating the cervix and blocking the effects of the hormone progesterone, while misoprostol, taken 24 to 48 hours later, works to empty the cervix. cervix. uterus causing cramping and bleeding, similar to an early miscarriage.

The use of the drug can be self-managed at home and no medical intervention is required afterwards. But the drugs are subject to restrictions at the state and federal levels.

WATCH | Renewed focus on abortion pills following US Supreme Court ruling:

Renewed focus on abortion pills following U.S. Supreme Court ruling

Kate Kelly of the advocacy group Shout Your Abortion says several groups in the United States are working to educate people about the availability of abortion drugs after Roe v. Wade.

For years, the FDA has required people looking for mifepristone to visit a medical clinic to acquire it. But in December 2021, amid the COVID-19 pandemic, the federal agency waived that requirement, meaning the drug could be obtained by mail – although it still had to be prescribed by a provider. Health care. certified health.

With some states now banning abortion drugs, pregnant women in those jurisdictions will either have to travel to another state where abortion remains legal or have the pills mailed to them from those same states.

This new battleground had begun to form before the Roe decision, when some states took the legally nebulous step of banning the practice of telemedicine abortion and barring residents from receiving abortion drugs by mail.

However, the application of these laws may encounter difficulties.

Application Challenges

Targeting people’s mail, for example, would be difficult for state authorities, which have no jurisdiction over the U.S. Postal Service, an independent federal agency, said Rachel Rebouché, reproductive health law expert and dean from Temple University Beasley School of Law. in Philadelphia.

“States do not have the authority to search mail without a warrant,” she said. “I think it’s hard [to enforce]. States could obtain warrants; they could potentially monitor mail. But it’s hard – and they probably know it.

It is possible for states to treat abortion drugs as illegal drugs, by prosecuting individuals for possession. But many anti-abortion groups have said they do not support the criminalization of abortion patients.


Drug-banning states could also seek to prosecute across borders.

A draft paper co-authored by Rebouché – titled “The New Abortion Battleground” and set to be published in the Columbia Law Review – raises the question, suggesting that “out-of-state, as well as out-of-country providers, could be guilty of state crimes by offering these telehealth services.

“In a post-Roe world, anti-abortion states will struggle to establish jurisdiction over these out-of-state providers, while abortion-protecting states will attempt to shield their providers from out-of-state lawsuits. of State. “State”, write its authors.

On the other hand, some states where abortion remains legal have introduced laws to protect abortion providers from extradition to states where the practice is prohibited.

But Gostin said it would be extremely difficult for one state to charge or penalize a health care provider who prescribes abortion drugs in another state. “States have no jurisdiction outside their national borders.”

Case in Federal Court regarding ban on pills

As national abortion laws continue to change, some states could eventually find themselves in legal battles over FDA approval of abortion drugs.

Shortly after the Supreme Court ruling, Attorney General Merrick Garland released a statement, hinting at how some abortion restrictions could be combated.

“We stand ready to work with other branches of the federal government that seek to use their legitimate powers to protect and preserve access to reproductive care,” he said. “In particular, the FDA has approved the use of the drug mifepristone. States cannot ban mifepristone due to disagreement with the FDA’s expert judgment on its safety and efficacy.

States that have restricted abortion have made it clear that this also applies to medical abortion – a method used in more than half of all abortions in the United States. (Jose Luis Magana/The Bharat Express News)

Many legal eyes are also on a case before a federal judge in Jackson, Miss., that involves the maker of a generic version of the drug.

GenBioPro Inc. argues that FDA approval of mifepristone should overturn any state bans and that the overturning of Roe v. Wade won’t allow Mississippi to stop him from selling the pills in the state.

That argument is the “preemption” theory, said Amanda Allen, senior attorney and director of The Lawyering Project, an organization that represents abortion providers.

“[It’s] the idea that if the federal government has somehow claimed an area of ​​law, that federal law will trump state law,” Allen said.

In the case of Mississippi, she said, that would mean that the FDA, by regulating, approving and imposing restrictions on mifepristone, has essentially “occupied the ground and contrary state law should be struck down.” .

Gostin agreed that the FDA can assert its supremacy and that its scientific approval of abortion pills should prevail over any state law prohibiting or restricting such access.

“The US Department of Justice could challenge any state restrictions on abortive drugs, based on the assertion that the FDA sets a uniform national standard based on science,” he said. “States cannot choose which FDA-approved drugs they will or will not authorize.”

A box of mifepristone tablets is in the foreground.  A woman working at a computer in the background.
A nurse practitioner at a Planned Parenthood clinic in Fairview Heights, Illinois participates in a teleconference with a patient seeking a medical abortion. (Jeff Roberson/The Bharat Express News)

States could, however, argue that things have changed since the overthrow of Roe v. Wade.

Mississippi, for example, said in an opposing filing that “the legal landscape…has shifted overwhelmingly in favor of state authority to regulate or prohibit abortion,” and that there was no no evidence that Congress ever wanted the FDA to restrict states’ ability to regulate abortion.

“There are a lot of arguments that states can make,” Rebouché said. “They can say they’re not trying to regulate safety; they try to regulate morality or protect potential life.

“They could say that was not the purpose of Congress in giving this power to the FDA.”

Katie Watson, a constitutional scientist and medical ethicist at Northwestern University’s Feinberg School of Medicine, recently told the New York Times that the federal government’s ability to enforce FDA approval trumps state laws. States. is limited, “given that states have traditionally regulated the practice of medicine”.

Problem not yet legally tested

Rebouché described the whole legal issue as a sort of “new incident,” she said, “where half the country is going to try to ban an FDA-approved drug.”

While the matter is debated, she said she has not yet been legally tested. “So that would have pretty huge consequences.”

If a federal court were to declare that states cannot regulate or prohibit medical abortion, based on the theory of preemption, it would certainly have national implications, Allen said.

“The real question is whether the Supreme Court, as it is currently constituted, would uphold this kind of decision.”

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