Justice Department’s warning to states over abortion pill bans points to legal fight ahead

Washington — With the Justice Department’s recent warning to states not to ban a federally approved drug that induces an abortion after the Supreme Court overturned Roe v. Wade, the Biden administration signaled that medication abortion may be the next front in the fight to preserve abortion rights in states that are curtailing access.

Twenty-two years ago, the Food and Drug Administration (FDA) approved the drug mifepristone — taken together with a second medicine — for use in terminating a pregnancy through 10 weeks gestation. Last December, the agency lifted a requirement that the medication be dispensed in-person, allowing it to be prescribed by a provider through a telemedicine appointment and sent to the patient by mail.

But the high court’s ruling ending the constitutional right to an abortion late last month has put the issue of abortion access in the hands of statewide elected officials and cleared the way for Republican-led legislatures to enact a flurry of new limits, including bans on all forms of abortion and restrictions on medication abortion.

In 19 states, the clinician providing a medication abortion has to be physically present when the drug is administered, limiting the use of telemedicine, and two states ban the use of medication abortion beginning at a specific point in pregnancy, according to the Guttmacher Institute, a research organization that supports abortion rights. Thirty-two states allow only physicians to provide mifepristone, even while the FDA allows certified health care providers to prescribe the drug.

But Attorney General Merrick Garland said following the court’s blockbuster decision that states could not ban mifepristone “based on disagreement with the FDA’s expert judgment about its safety and efficacy,” suggesting the Justice Department could take legal action against states that attempt to do so.

Jessie Hill, a law professor at Case Western Reserve University who focuses on reproductive rights, said one possible argument by the Justice Department to protect access to mifepristone is that the FDA’s regulations are superior to state laws limiting medication abortion, a concept known as preemption.

“The idea here would be the federal government has said mifepristone is safe and effective and given it a license to be sold in every state in the U.S.,” Hill said. “No state can turn around and forbid it. That’s one legal theory, and the Department of Justice could go into court and sue on that theory.”

But Hill noted there are obstacles to pursuing such a strategy.

“One of the challenges is you have to show a clear conflict, and it’s not obvious there is one,” she said. “It’s very unsettled, but there could be some hurdles with a lawsuit like that.”

The preemption argument is currently being tested in federal court, where the pharmaceutical company GenBioPro, which makes generic mifepristone, is challenging requirements imposed by Mississippi officials before the drug can be dispensed. Mississippi is also among the 13 states with a “trigger law,” under which nearly all abortions, including medication abortions, were banned in the state with the Supreme Court’s decision to overturn Roe. 

In a letter to the federal district court judge in Jackson, Mississippi, lawyers for the company said the high court’s ruling “neither abrogates the FDA’s authority under the Supremacy Clause nor allows Mississippi to ban an FDA-approved medication.”

“Mississippi’s current restrictions on mifepristone already upset the balance the FDA struck between risk mitigation and ensuring access to a safe and effective medication,” they wrote. “A ban would further distort that balance and run farther afoul of the Supremacy Clause.”

In addition to asserting the FDA’s approval is superior to conflicting state laws, Hill said the Justice Department could argue that bans on the abortion pills also violate the Dormant Commerce Clause, which holds that states cannot impose regulations that heavily burden interstate commerce.

Still, “it’s an unsettled question here,” she said. “There are cases that can point in both directions, and another potential legal theory, but not one without difficulties,” as the doctrine’s focus is to prohibit economic protectionism.

While the Justice Department charts its legal course for protecting access to medication abortion, Deputy Attorney General Lisa Monaco said last week the department would evaluate all new restrictions on the abortion pills closely.

“We are not going to hesitate to take very seriously, examine the specifics of each challenge, of each statute that gets passed in various states, and we are going to do everything we can to uphold the rights of citizens in states where states have made it legal,” she said at an event in Washington.

President Biden has also directed the Department of Health and Human Services (HHS) to undertake efforts to ensure medications like mifepristone “are available to the fullest extent possible, and that politicians cannot interfere in the decisions that should be made between a woman and her doctor.” In response to that directive, HHS Secretary Xavier Becerra said the department will work to increase access to medication abortion, including teaming up with the Justice Department to ensure “that states may not ban medication abortion, based on a disagreement with the FDA’s expert judgment about the drug’s safety and efficacy.”

But abortion rights advocates are urging the Biden administration to do more.

Nancy Northup, president and CEO of the Center for Reproductive Rights, a legal group that represented Mississippi’s lone abortion clinic in the dispute that led to Roe’s reversal, said Mr. Biden should declare a public health emergency for abortion.

Such a step, she wrote in The Washington Post, would give HHS the power to help patients get abortion care wherever they live and enable out-of-state prescribing and dispensing for abortion pills in states with outright bans on the procedure.

Northup also called on Becerra to declare a public health emergency under the Public Readiness and Emergency Preparedness Act, which allows the health secretary to issue a declaration that shields providers, patients and pharmacists who provide abortion pills in restrictive states from liability. The declaration, she said, would supersede state abortion bans that cover medication abortion.

“We need a national standard guaranteeing abortion access, which Biden rightly said Congress must legislate,” she wrote. “But in the meantime, the administration must take the first step toward restoring national protections: Declare a public health emergency now and ensure that medication abortion is available across the nation.”

Jennifer Driver, senior director of reproductive rights for the State Innovation Exchange, an organization that works with progressive state lawmakers nationwide, believes the administration needs to provide more clarity about its plan to preserve abortion access. 

“It’s not enough to say, we’re going to make sure that people receive abortion pills in their state and don’t restrict abortion pills to their states. That’s not enough to say that,” she told CBS News. “How are you going to do that? What are the mechanisms you are going to put in place? What’s the plan?” 

She also panned repeated calls from Mr. Biden and Vice President Kamala Harris for voters to cast their ballots for lawmakers at the federal and state levels who will protect abortion rights, calling it “defeating” for the administration to point to voting as the answer to abortion limits already enacted in GOP-led states in the wake of the Supreme Court’s decision.

“We want to hear a clear and definitive plan from the federal government,” she said. “Something beyond ‘vote.'”

Robert Legare contributed to this report.