By David G. Bjornstrom

Can States be Forced to Allow Chemical Abortions?

July 29, 2022
Column: Catching Air
The Supreme Court has overruled Roe v. Wade, holding that each state should decide its own abortion law, but there is a new battle looming over whether that extends to chemical abortions. This is no small issue when more than half of all abortions in the United States are carried out using a drug called mifepristone, also known as Mifeprex or RU-486.

With Roe gone, some of the more pro-life states are banning mifepristone outright, at least for most pregnancies. Other states may just restrict its use, for example, requiring doctors who prescribe abortion drugs to have admitting privileges at a local hospital to deal with the high incidence of medical complications.

Of course, the usual pro-abortion groups, including the Biden administration, want no abortion restrictions at all, threatening to challenge any state laws that outlaw or restrict chemical abortion.

President Biden has directed the Department of Health and Human Services (HHS) to ensure that abortion drugs are made available to the fullest extent possible in all fifty states.
Attorney General Merrick Garland has pledged to use the powers of the Justice Department to crack down on states trying to ban medication abortion. Xavier Becerra, Secretary of the federal Health and Human Services agency (HHS), has proclaimed that “all options are on the table” to protect abortion, including working with the US Attorney General and Justice Department to ensure that states do not ban medication abortions.

Does FDA approval of abortion drugs bind the states?

Legal challenges to states banning abortion drugs are likely to focus on whether the FDA’s approval of mifepristone should be treated as federal law that preempts any state restrictions. The issue is whether the FDA’s legal authority to approve drug safety and efficacy requires all of the states to permit the sale and use of those approved drugs.
Pro-abortion groups argue that state restrictions against abortion drugs would frustrate the FDA’s authority to promote public health (as they see it) through a nationally uniform drug market. Pro-life groups counter that the federal government does not have the authority to mandate drug availability, especially abortion drugs, and even if it did, Congress has never given such broad authority to the FDA.

Pro-abortion groups would need to show, first of all, that Congress and/or federal agencies have the legal authority without Roe to override state laws against abortion. Otherwise, states have a broad “police power” to regulate the administration of drugs by the health professions. The Supreme Court’s formal written opinion in the Dobbs case overruling Roe v. Wade suggests that Congress does not have that power, emphasizing that any future abortion legislation or regulations should be up to the states, not the federal government.

Secondly, even if Congress has the legal power to force states to allow abortions, that power would have to actually be exercised. However, Congress has never actually passed any law to create a national right to abortion. And even if Congress has the power to do that, it could not be accomplished through a federal agency like the FDA unless Congress expressly delegated that power to the agency.

The FDA’s statutory delegation of authority from Congress relates to drug “safety and efficacy,” allowing the FDA to act as a gatekeeper against unsafe drugs. But the FDA’s power to outlaw unsafe drugs does not necessarily mean that a state cannot regulate a drug more harshly than the FDA. There is no evidence that Congress ever intended to give the FDA any power to block a state’s ability to restrict medication-induced abortion.
In any event, state laws against chemical abortion do not infringe on the FDA’s legal turf (drug “safety and efficacy”) since they are based on a state’s decision to ban certain conduct, namely abortion, irrespective of whether the abortion drug is safe for the pregnant woman or efficacious to destroy the preborn baby.

Court precedents

The Supreme Court in the 2009 case of Wyeth v. Levine held that a state could impose legal restrictions beyond what the FDA required in the form of stronger side-effect label warnings.
The Court emphasized that the historic police powers of the states are not superseded by federal law in the absence of a “clear and manifest” congressional purpose, particularly in traditional health and safety areas dominated by the states.
More recently, in 2014, a Court in Massachusetts held in the case of Zogenix v. Patrick that the state could not to ban a controversial but FDA-approved opioid. However, that was just a District Court case not reviewed by the Supreme Court.

It is unclear what the next step will be, whether legal action by the federal government or the drug companies. There is a pending lawsuit filed in 2020 by the company GenBioPro, maker of a generic version of the drug mifepristone, contesting Mississippi restrictions against chemical abortion that predated the overturn of Roe v. Wade. With Roe now gone, that lawsuit will be focusing on the FDA’s approval of the abortion drug versus the Mississippi anti-abortion law now approved by the Supreme Court.

Resolution of these issue may be influenced by recent Supreme Court’s decisions limiting the power of unelected federal agencies to enforce regulations affecting major policy questions that should be addressed instead by our representatives in Congress.
These cases include the Court’s January 2022 decision invalidating the employer Covid vaccine mandate from the Occupational Safety and Health Administration (OSHA) and the Court’s decision in West Virginia v. EPA blocking regulations imposed by the Environmental Protection Agency (EPA).
The Supreme Court in West Virginia v. EPA blocked a series of EPA regulations based on a legal principle known as the “major questions doctrine.” Federal agencies need explicit authorization from Congress, not just general “implied” powers, in order to make policy decisions affecting matters of “vast economic and political significance.” This principle may apply to the FDA and abortion drugs since the FDA has no explicit authorization from Congress to preempt state restrictions on abortion drugs, and it is hard to imagine any more “major question” than abortion.

Just the beginning

Of course, no matter how the law develops, there will always be practical problems in restricting abortion and abortion drugs. Some women from anti-abortion states may travel to other states for their abortions, and abortion drugs may be smuggled into a state or received by mail from vendors willing to sell an illegal product.
Unfortunately, there is simply no magical solution to an abortion problem that has developed over many years of bad education, bad laws, and a general decline in morality and religious faith. The best we can do is start from where we are, working toward a culture of life that values each and every human person.

David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »

Leave a Reply