OPINION:
In the Wild West that is post-Roe v. Wade abortion legislation and litigation, abortion drugs (“abortifacients”) have emerged as the next legal battleground. States have proposed everything from constitutional amendments on abortion to gestational age limit bans. But a growing majority of abortions now result from drugs rather than surgery. And there, state legislators in pro-life states are assessing whether they can restrict these chemical abortions.
Happily, the answer is likely yes, they can.
Under the 10th Amendment to the Constitution, states may exercise powers that are not delegated to the federal government or otherwise prohibited to the states. These reserved powers include what is often called a general “police power” to provide for “[p]ublic safety, public health, morality, peace and quiet, [and] law and order.” They include the regulation of the medical profession. And after the Supreme Court’s ruling last term in Dobbs v. Jackson Women’s Health Organization overruling Roe, states may now prohibit abortion as well. Taken together, this would suggest that states can close off chemical abortions altogether.
“But wait!” you say. Health and Human Services Secretary Xavier Becerra has said that abortion drugs have been approved by the Food and Drug Administration. Yes, the FDA has concluded that abortion drugs mifepristone and misoprostol are “safe and effective” under certain conditions and can be marketed for sale and use.
But does that mean this federal agency approval trumps state restrictions on abortifacients? Hardly.
As my Heritage Foundation colleague Tom Jipping and I have written, the FDA’s approval simply means that a prescription drug may be marketed, not that it must be. In fact, there is a long-standing general presumption against federal preemption — the doctrine that stems from the Constitution’s Supremacy Clause and makes federal law the “supreme Law of the Land” by generally overriding conflicting state laws.
This general presumption is especially strong when state police powers — no matter what they may be — are involved. The Supreme Court has said that “the historic police powers of the States are not superseded ‘unless that was the clear and manifest purpose of Congress.’”
And for the law governing the marketing and approval of pharmaceuticals like abortion drugs, it wasn’t.
The question, then, is whether Congress intended FDA approval of abortion drugs to preempt, and therefore block, state legislation restricting access to those drugs. With respect to this question, the litigation over COVID-19 restrictions may hold the key.
At the height of the pandemic, political executives threw all manner of restrictions at lockdown-weary citizens in an effort to stem the pandemic’s tide. The challenges to COVID-19 restrictions that reached the Supreme Court involved federal law: either restrictions being imposed by federal government agencies or those that implicated federal constitutional rights. These challenges invited the Supreme Court to decide whether the federal statutes in question gave authority to those agencies that could preempt the states’ authority 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 general 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.
Yet during this same period, 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.
While many of the orders denying review of state COVID-19 restrictions were unsigned, a clear theme emerges: As a public health emergency, COVID-19 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 meddle in state affairs when it comes to regulating medical practice, at least without a clear statement from Congress in a federal statute empowering a federal agency to override how states manage 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 and its illegitimate progeny, 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, [s]tates 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 in The Heritage Foundation’s Meese Center for Legal and Judicial Studies.
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