Here is what the recent Supreme Court ruling might mean for medical abortion access.
On Friday, June 24, 2022, the U.S. Supreme Court released its decision to overturn Roe v. Wade, eliminating women’s constitutional right to abortion. Governments in each state now have the power to decide whether to legalize or ban the practice. This leaves women across the nation worried about their reproductive rights and how to have access to safe abortion methods in states where abortion is banned.
In 2000, the U.S. Food and Drug Administration (FDA) approved mifepristone as a method of abortion. Taken with misoprostol within the first 10 weeks of pregnancy, this drug combination, known as the abortion pill, can safely induce an abortion. According to the Guttmacher Institute, medication-induced abortions account for the majority of all abortions in the U.S. Now the question arises: Will state governments be able to ban this federally approved abortion pill?
The Preemption Argument
The preemption doctrine refers to the idea that when state and federal law conflict, federal law displaces, or preempts, state law, based on the Supremacy Clause of the Constitution. Because federal law is the “supreme law of the land,” all courts in every state are obligated to enforce the Constitution and laws passed by the federal government. If mifepristone is an FDA-approved drug for safe abortions, could state laws restrict the use of that medication?
Let’s look at a precedent that mirrors the current issue of interest. In 2014, in response to the opioid abuse crisis, Massachusetts tried to ban the use of Zohydro, an FDA-approved painkiller. A U.S. District Court judge rejected this Zohydro ban, stating that federal law trumped state action; the judge ruled that the state was obstructing the FDA’s constitutionally mandated charge, allowing for the use of Zohydro in Massachusetts. However, the recent Supreme Court ruling eliminates women’s constitutional right to choose to get an abortion on a federal level, leaving us with an unprecedented legal challenge.
If the preemption argument prevails, access to medical abortion would be protected in all 50 states, preventing states from banning access to the abortion pill to safely induce abortion within the first 10 weeks of conception. Alternatively, if the preemption argument fails, each state has legal autonomy to decide whether or not to legalize abortion, and the abortion pill will only be made readily accessible in states that choose to continue to allow it. This would set a precedent for states to exert more control over drugs and medication access, which may include emergency contraception known as Plan B.
President Joe Biden promised that his administration would seek to protect women’s access to reproductive medications approved by the FDA, including contraceptives and mifepristone. Attorney General Merrick Garland stated that “states may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” Over the next few weeks, we may see legal challenges as states move to ban or heavily restrict abortion.
How Are Health Care Providers Affected?
Many women in states with bans on abortion may resort to ordering mifepristone online from out of country, which raises safety concerns for patients. These websites are not regulated by the federal government, and there is no way to authenticate these medications. Without proper confirmation or approval on what drug is being marketed and delivered, women are placed at an increased risk of side effects.
With Roe v. Wade being overturned, many states will and have already begun to make moves to ban abortions based on religious and moral grounds or otherwise. The issue of medical abortions is another battleground on the discussion of life, liberty, and health care as we continue to fight to preserve people’s abortion rights across the country over the many months and years to come.
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