December 8, 2022

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The Supreme Court’s three liberal justices, in denouncing their colleagues’ decision to eliminate the nationwide right to abortion, warned last month that returning this polarizing issue to the states would give rise to greater controversy in the months and years to come.

Among the looming disputes, they noted: Can states ban mail-order medication used to terminate pregnancies or bar their residents from traveling elsewhere to do so?

“Far from removing the court from the abortion issue,” Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan wrote in dissent, “the majority puts the court at the center of the coming ‘interjurisdictional abortion wars.’ ”

The overturning of Roe v. Wade after nearly 50 years is expected to trigger a new set of legal challenges for which there is little precedent, observers say, further roiling the nation’s bitter political landscape and compounding chaos as Republican-led states move quickly to curtail access to reproductive care. It is possible, if not probable, that one or both of these questions will eventually work its way back to the high court.

“Judges and scholars, and most recently the Supreme Court, have long claimed that abortion law will become simpler if Roe is overturned,” law professors David S. Cohen, Greer Donley and Rachel Rebouché wrote in a timely draft academic article cited by the dissenting justices, “but that is woefully naive.”

As a result of the ruling in Dobbs v. Jackson Women’s Health Organization, abortions — both the surgical procedure and via medication — are banned or mostly banned in 13 states. Several others are expected to follow in coming weeks.

White House debates declaring abortion access a ‘health emergency’

The Biden administration has pledged to ensure access to abortion medication, which is used in more than half of all terminated pregnancies in the United States, and prohibit states from preventing their residents from traveling out-of-state for care. But a month after the Dobbs ruling, administration officials are still debating how they can deliver on that promise beyond the president’s executive order to protect access. A White House meeting Friday with public-interest lawyers was designed to encourage legal representation for those seeking or offering reproductive health services.

Democratic leaders and liberal activists have called on President Biden to take bolder action, especially on medication abortion. Illinois Gov. J.B. Pritzker (D) said in an interview that he has directly urged the president to make clear that abortion providers in states controlled by Democrats should be able to ship pills to patients anywhere in the country, whether or not the patient’s state has enacted a ban. Pritzker advised the president to assert federal authority over the U.S. mail system, he said, and specify that no one will be prosecuted for prescribing or receiving them.

“People ought to be able to receive their medication in the privacy of their own home even if they live in a state where the procedure is not allowed,” Pritzker added, saying Biden appeared “very receptive” to the idea.

The White House did not immediately respond to a request for comment on Pritzker’s characterization of the conversation.

Republican state attorneys general are preparing for a court fight, said Sen. Roger Marshall (R-Kan.), accusing Biden and the White House of exhibiting a “consistent disrespect for the law and the constitution and the Supreme Court.”

“We’re anticipating that he’s going to do this,” Marshall said.

Antiabortion lawmakers want to block patients from crossing state lines

Already, the manufacturer of the abortion medication mifepristone has sued the state of Mississippi and promised that additional lawsuits would be filed in other states. It remains to be seen whether the Biden administration will intervene in one of those cases or file its own legal challenges.

The Justice Department has activated a “reproductive rights task force” to monitor and push back on state and local efforts to further restrict abortion, but officials have not fully detailed their plans. Attorney General Merrick Garland said during Friday’s White House event that “when we learn that states are infringing on federal protections, we will consider every tool at our disposal to affirm those protections — including filing affirmative suits, filing statements of interest, and intervening in private litigation.”

The Food and Drug Administration approved mifepristone in 2000, finding it safe and effective to end an early pregnancy. The medication, now authorized for the first 10 weeks of pregnancy, is used with a second drug, misoprostol, to induce an abortion.

Among the unresolved questions is whether FDA approval of medication preempts state action. Legal experts say it is unclear whether the federal government would succeed if it challenged state restrictions on abortion medication, and that it will depend on how those measures are written.

Garland said soon after the Supreme Court overturned Roe that states may not ban mifepristone “based on a disagreement with the FDA’s expert judgment.” The agency is charged with evaluating the safety and efficacy of drugs, and federal law generally preempts state law when two measures are in conflict.

Melissa Murray, a New York University law professor, said it was important for Garland to make a strong statement but that it is not a panacea in uncertain legal terrain.

“Even though the administration has said states can’t ban mifepristone on the grounds that it is somehow unsafe, that doesn’t mean they can’t ban it for other purposes. That’s an open question,” said Murray, who was written extensively about reproductive rights.

An administration heath official said the White House and the FDA realize that if states succeed in banning the abortion pill, or imposing sharp restrictions, the federal government’s authority on a range of medications could be undermined.

“If states want to ban vaccines, can they?” asked the official, who spoke on the condition of anonymity because they were not authorized to talk about the issue. “What if a state were run by Scientologists?” the official said, referring to the movement that has long opposed psychiatric medications.

The FDA lifted some restrictions on abortion pills in December, permitting providers to send medication through the mail in states that do not prohibit telemedicine for abortions. At least 19 states ban the use of telehealth for medication abortion, and Republican lawmakers in more than a half-dozen states have introduced or passed legislation to ban or severely restrict abortion medication, according to the Guttmacher Institute, a research group that supports abortion rights.

Abortion is now banned in these states. See where laws have changed.

The federal case in Mississippi, filed before the Supreme Court’s June ruling in Dobbs, offers a window into the coming legal disputes over abortion pill access.

GenBioPro, which sells mifepristone, initially sued Mississippi in 2020 over additional requirements the state imposed, including a waiting period and counseling. The office of Mississippi Attorney General Lynn Fitch (R) said in recent court filings that the Supreme Court’s decision allowing states to ban abortion strengthens the state’s position. The case is not about the drug’s safety but the state’s authority over abortion “regardless of the means by which the abortion is induced,” Fitch’s office wrote.

Mississippi’s trigger law, which took effect in July and bans nearly all abortions, makes no distinction between surgical abortions or abortions induced by medication, the office said.

Gwyn Williams, an attorney for GenBioPro, said the FDA has the power to decide which medications are safe. Individual states, she said, “do not get to legislate away the power Congress granted to FDA.” The company, she said, intends to file additional legal challenges in other states.

Legal experts point to one of the few cases to raise similar questions. In 2014, Massachusetts tried to ban an FDA-approved opioid called Zohydro. Then-FDA Commissioner Margaret Hamburg recalled recently that she was deeply worried by the “rationale and the precedent it could set.” At the time, she warned Massachusetts officials that the move could prompt other states to ban “such vital medical products as birth control or RU-486,” the abortion pill.

A District Court judge sided with the opioid manufacturer and said the FDA’s approval preempted state law. Massachusetts withdrew its regulations and did not appeal, meaning other judges are not required to follow the same legal reasoning.

Lawrence O. Gostin, director of Georgetown University’s O’Neill Institute for National and Global Health Law, said FDA approval of drugs, including in the abortion context, “should supersede any state restrictions” because the agency is responsible for setting a national uniform standard for what drug patients can get access to in the United States.

The Biden administration has an “extraordinarily strong legal claim,” he said. “Any other decision could open a floodgate of states making their own choices of FDA-approved medication, and that would be disastrous for the health and safety of Americans.”

Even so, he said the same conservative majority of the Supreme Court that erased the constitutional right to abortion “might just say, states license medical providers and can make judgments about what those providers can and can’t do.”

Ed Whelan, a fellow at the conservative Ethics and Public Policy Center, said federal preemption does not mean states are barred from dictating how — or whether — certain drugs can be used.

“Assume that the FDA approved a drug for use in physician-assisted suicide,” he wrote recently in National Review. “Why would anyone imagine that FDA approval overrode state laws barring physician-assisted suicide? Why should it be any different here?”

In a separate opinion concurring with the Supreme Court majority in June, Justice Brett M. Kavanaugh wrote that the court’s decision does not mean a state may block a resident from traveling to another jurisdiction to obtain an abortion. He characterized the legal question as “not especially difficult as a constitutional matter” based on the “constitutional right to interstate travel.”

But Republican state lawmakers and national antiabortion groups have put forward plans to restrict out-of-state abortions and modeled those proposals on the Texas six-week abortion ban crafted to evade judicial review. A Missouri bill, which failed to pass during the 2022 legislative session, would have imposed civil liability on anyone who helped a resident travel out of state to obtain an abortion. South Dakota’s governor has said she is open to such proposals, and an Arkansas senator has also expressed interest in similar legislation.

The Justice Department has emphasized that the Supreme Court’s ruling does not prevent women from traveling across state lines to terminate a pregnancy. Citing “bedrock constitutional principles,” Garland said individuals residing in states where access to reproductive care is banned “must remain free to seek that care in states where it is legal.”

Legal experts, though, say these constitutional defenses are subject to debate and have not been tested in court. Even if the Justice Department filed a lawsuit challenging such restrictions, litigation takes time.

“It’s not going to be instantaneous,” said Murray, the law professor. “In the meantime, what you have is a landscape of confusion, chaos and uncertainty where patients don’t know what their rights are and physicians don’t know how their medical judgment will interact with laws on the ground. That climate of fear and confusion can be just as effective as an outright ban.”

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