For drug abortions, a sorting of federal instances will require new lawsuits, which are likely to be brought in states that are already hostile to abortion, and – depending on their outcome – may rise to a Supreme Court that has already denied abortion rights. Legal experts are concerned that this could lead to results with broader implications for federalism as a whole. “For over 230 years of Supreme Court case law and the rule of law, federal laws and regulations have always governed the laws of our nation,” said Michele Bratcher Goodwin, law professor and founding director of the University of California Center for Biotechnology and Global Health Policy. , Irvine. “But there may well be challenges to how we understand that rule of law, and what we have known for over 230 years can be cut away.”
On the day of Dobbs decision, President Joe Biden and Attorney General Merrick Garland stated separately that the federal government would protect the right of pregnant women to access the drugs that cause abortion: mifepristone and misoprostol. “We are ready to work with other arms of the federal government seeking to use their legal authorities to protect and maintain access to reproductive care,” Garland said. “The FDA has approved the use of the drug mifepristone. States may not ban mifepristone based on disagreement with the FDA’s expert assessment of its safety and efficacy.”
To this point, however, there has been no public commitment to action. Four days later Dobbs decision, Xavier Becerra, Secretary of the Department of Health and Human Services, said in a media briefing that his team would work to increase access to medication abortion, but told reporters to “stay tuned” when asked for details.
It is possible that the Department of Justice could defend the FDA’s rights. Goodwin points out that the agency was instrumental in leading the fight against Jim Crow laws in the early 20th century; she argued in Atlantic Ocean in May that annulment of access to abortion creates a “Jane Crow” regime that similarly violates constitutional rights. But those who see this problem evolve say the more likely scenario is that drug manufacturers will sue.
There is already one such case: GenBioPro is suing Mississippi because state restrictions go beyond those set by the FDA. That case was brought before Dobbs however, decision. Last week, the company and the defendant – Mississippi State Health Officer Thomas Dobbs, named Dobbs in the Supreme Court decision – filed competing decisions arguing whether Dobbs the decision and the Mississippi Trigger Act, which clicked into place immediately after, rendered the case invalid. GenBioPro’s lawyers argued that their case, which raises objections to state restrictions, should go ahead.
Whatever the outcome, the case only concerns Mississippi law. To ensure a wider distribution, a company will need a broader challenge. “A drug manufacturer that is materially affected by a ban can sue on a national or state-by-state basis,” said Rachel Rebouché, associate dean of research at Temple University’s James E. Beasley School of Law and one of the authors of a very read law notification article claiming that there are precedents for pre-emptive rights. A company could sue a single state ban, she says, but it could ask the federal district court in that state to make its ruling nationally applicable to any state where a similar ban exists.
What strengthens the anticipatory argument – the claim that the FDA’s judgment has more power than state law – is that the abortion pill regime has been studied by the agency in a way that few other drugs have been. Mifepristone, which causes a pregnancy to end by blocking a hormone that supports the lining of the uterus, is not just a prescription drug. It is also subject to a rare form of additional control called a Risk Evaluation and Mitigation Strategy, which the FDA otherwise only applies to drugs with serious side effects. (The introduction of this extra layer of regulation for mifepristone is generally considered to be a result of political pressure rather than pharmaceutical risk; mifepristone causes fewer adverse events than the prescriber or Tylenol.) Both the prescribing physician and the dispensing pharmacist must be separately certified by the FDA, and the recipient must read instructional materials and then sign a “patient agreement form.”
“By creating an FDA, Congress said: This is how we get a nationally uniform market for safe and effective medicines“Zettler says.” The FDA has considered a wide range of issues regarding this drug and made the careful consideration that Congress asked it to make in terms of evaluating the safety and efficacy of this drug, and come up with this scheme for regulation. of the drug. And the question becomes: Can states deviate from that system? ”
That question will be asked in a legal context in which a federal court in April overruled power of the Centers for Disease Control and Prevention to determine mask mandates, and where the Supreme Court both invalidated a vaccine mandate determined by the Danish Working Environment Authority and shifted the balance of power to regulate emissions towards Congress and away from the Environmental Protection Agency. In other words, it is an option in which the power of the federal government is cut. This inevitably leads to the question of how much the power of the FDA can also be reduced.
Prevention is an important issue to see, Zettler says, because “it can limit the ways in which states can regulate other types of drugs that are not part of the abortion debate, or it can open the door to more state regulation. The effects outside of it Reproductive health context can also be important. “