Supreme Court could drop California’s shield for doctors who mail abortion pills

California’s new law protecting in-state doctors and pharmacists who prescribe and provide the abortion pill to out-of-state patients could be upended if Supreme Court justices choose to review the Food and Drug Administration’s approval of mifepristone.

A ruling striking down the FDA approval or rolling back the Biden administration’s moves to make the pill available through the mail would crush Gov. Gavin Newsom’s law to shield Californians trying to provide abortions beyond state borders.

“Federal law preempts state law. If the Supreme Court holds that federal law prohibits shipping these pills through the mail, the state law would have no effect,” said Josh Blackman, a professor at South Texas College of Law.

If California’s law remains on the books, state courts would not be authorized to send information about residents and doctors to other states that may have strict abortion laws, he said, noting that Texas has outlawed abortion except in instances to save the life of the mother.

“If the Supreme Court does not go down that route, the California law could prevent California courts from complying with subpoenas and other requests from Texas,” Mr. Blackman said.

The justices could soon decide whether to review a ruling this term from the 5th U.S. Circuit Court of Appeals, which prohibited prescriptions of the abortion pill — specifically mifepristone — past seven weeks of pregnancy and banned distribution through the mail.

The Justice Department appealed to the Supreme Court after the lower courts restricted the use of mifepristone. The high court stayed the appellate court order as it mulls the issue, so the pill remains available during the appeals process.

A ruling by a three-judge 5th Circuit panel restricted the use of mifepristone and prohibited its distribution via mail, which the Biden administration attempted to authorize through telemedicine. The panel said the pill could not be used up to 10 weeks of pregnancy as the administration advocated.

A U.S. District Court in Texas had gone further than the 5th Circuit by saying the FDA should not have authorized the drug decades ago. The ruling effectively took the drug off the market.

The last time the Supreme Court took up the abortion issue, it overturned Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide. The ruling sent the matter back to the state legislatures.

Since then, conservative-led states have moved to restrict or ban abortion while liberal-run states such as California have tried to make the procedure more readily available, even to nonresidents.

Massachusetts and New York also have laws to shield residents and medical providers from out-of-state legal charges in connection with receiving or providing abortions, according to The Associated Press.

Mr. Newsom signed California’s measure into law last month, but Erwin Chemerinsky, a law professor at the University of California, Berkeley, said the legislation will likely face legal scrutiny.

The law shields abortion providers in California who treat out-of-state patients and forbids cooperation with out-of-state investigations into the mailing of the abortion pill across state lines.

“There are difficult constitutional questions. California can regulate what its doctors can and can’t do. But so can other states. How much California can protect its doctors who violate laws in other states raises unresolved constitutional questions. I think the California law is constitutional, but it is sure to be litigated,” Mr. Chemerinsky said.

Steven Schwinn, a law professor at the University of Illinois Chicago, said the use of shield laws in the realm of abortion, state by state, is a new area of jurisprudence with no clear precedent.

“We’ve seen some cases filed against state restrictions on mifepristone providers, including out-of-state providers, but just a few court rulings. It’s still way too early to tell what the courts as a whole will do in these cases. And it’s even less certain in the area of shield laws, where we have even fewer signals from the courts,” Mr. Schwinn said.