OPINION:
In the Wild West that is post-Roe v. Wade abortion legislation and litigation, abortion drugs have emerged as the next legal battleground.
States have proposed constitutional amendments on abortion and bans on gestational age limits. But a growing majority of abortions now result from drugs rather than surgery, and legislators in states that oppose abortion are assessing whether they can restrict these chemical abortions.
The answer is likely yes, they can.
Under the 10th Amendment, states may exercise powers that are not delegated to the federal government or otherwise prohibited to the states. These reserved powers include what are often called a general “police power” to provide for “public safety, public health, morality, peace and quiet, [and] law and order.” They also include regulation of the medical profession.
Taken together, that would suggest that states can close off chemical abortions.
Yes, the federal Food and Drug Administration has concluded that the abortion drugs mifepristone and misoprostol are “safe and effective” under certain conditions and can be marketed for sale and use. But federal agency approval does not necessarily trump state restrictions on abortion drugs, or “abortifacients.”
The FDA’s approval simply means that a prescription drug may be marketed, not that it must be. There is a long-standing general presumption against federal preemption when state police powers are involved. The Supreme Court has said: “The historic police powers of the states are not superseded ’unless that was the clear and manifest purpose of Congress.’”
With respect to the law governing marketing and approval of pharmaceuticals such as abortion drugs, congressional intent to override state authority was neither clear nor manifest.
Even the FDA’s approval for mifepristone itself is now in question. On Friday, U.S. District Judge Matthew Kacsmaryk determined that in approving the abortion pill, the agency had exceeded its authority under federal law and “acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions.”
The FDA has appealed to the 5th Circuit U.S. Court of Appeals.
At the height of the COVID-19 pandemic, political executives threw all manner of restrictions at lockdown-weary citizens in an effort to stem the pandemic’s tide. Almost all the challenges to COVID restrictions that reached the Supreme Court involved federal law: either restrictions being imposed by federal agencies or those that affected federal constitutional rights. These challenges gave the Supreme Court ample and repeated opportunities to decide whether the federal statutes in question authorized those agencies to preempt the states’ power to regulate public health matters.
For example, in NFIB v. OSHA, the Supreme Court struck down the federal vaccine mandate for employers of 100 or more employees because the relevant statute allowed the secretary of labor to regulate only occupational and workplace hazards, not public health.
In Alabama Association of Realtors v. HHS, the court struck down the eviction moratorium imposed by the Centers for Disease Control and Prevention for tenants unable to pay rent because Congress had not explicitly granted such power to the CDC through legislation.
At the same time, the high court declined to consider cases involving a challenge to New York City’s COVID-19 vaccine mandate for health care workers, a challenge to Maine’s vaccine mandate for health care workers, and a request from a group of Indiana University students to block the university’s COVID-19 vaccination requirement. It also declined to lift a lower court order blocking COVID-19-related voting changes in Wisconsin.
The line of cases makes it clear: As a public health emergency, COVID fell squarely within the police power of the states to address. Whether through vaccine mandates or election laws, the court’s orders evidenced an unwillingness to intrude in state affairs when it comes to regulating medical practice, at least without a clear and manifest statement from Congress in federal statute empowering a federal agency to override states with respect to matters of public health.
So it may be for challenges to state laws restricting abortifacients on the basis of FDA approval of those drugs.
Within hours of the Supreme Court’s ruling overturning Roe, Attorney General Merrick Garland issued a statement decrying the Dobbs decision and insisting that because “the FDA has approved the use of the medication mifepristone, states may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” His statement, however, was silent on a state’s ability to ban the drug on other grounds.
State legislators in pro-life states may be keen to do just that.
• Sarah Parshall Perry is a senior legal fellow at The Heritage Foundation’s Meese Center for Legal and Judicial Studies.
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