In this photo illustration, a person looks at an Abortion Pill (RU-486) for unintended pregnancy from Mifepristone displayed on a smartphone on May 8, 2020, in Arlington, Virginia.
Olivier Douliery— AFP/Getty Images
Ideas
January 24, 2022 3:21 PM EST
Donley is the John E. Murray faculty scholar and associate professor of law at the University of Pittsburgh Law School
Rebouché is the interim dean of Temple University's Beasley School of Law and the James E. Beasley professor of Law.
David S. Cohen is a professor of law at the Thomas R. Kline School of Law at Drexel University.

On this year’s anniversary of Roe v. Wade, many wondered if it would be the last. Ever since the Supreme Court heard arguments in Dobbs vs. Jackson Women’s Health Organization in December, legal scholars have been predicting the end of Roe. The Supreme Court’s most recent decision to not intervene in Texas’ so-called “heartbeat” law (S.B. 8), which bans almost all abortions after around six weeks, did nothing to alleviate that fear. If we are correct about the Court’s signals and it does in fact overturn Roe later this spring, roughly half of U.S. states are expected to ban abortion, meaning that large swaths of the population could soon live in a state that criminalizes almost all abortion services.

Our federal structure, however, provides the building blocks for one of the most promising strategies to invalidate some aspects of those bans: federal preemption. The Constitution’s Supremacy Clause states that federal laws trump state laws. Preemption applies when federal and state laws conflict or when state regulations frustrate Congressional purpose in enacting federal law. The supremacy of federal law is why the proposed Women’s Health Protection Act, to the extent Congress could pass it, would ensure that every person had access to abortion even though state laws said otherwise. But even without legislation creating a federal abortion right, there are federal regulations that could call into question the laws of the 20-plus states that would outlaw or greatly restrict abortion if Roe is overturned.

Read More: What History Teaches Us About Women Forced to Carry Unwanted Pregnancies to Term

Federal law created the Food and Drug Administration (FDA) and outlined its mission to create a national system of drug review. This system is extensive and onerous—requiring years or even decades of expensive medical research to prove that a drug is safe and effective before it can be sold in interstate commerce. It was through that national drug review system that mifepristone, which is the only drug the FDA has approved to terminate a pregnancy, was approved for use. Moreover, the FDA has long imposed extra limits on mifepristone’s distribution: requiring people to pick up the drug at a health care facility, limiting who can prescribe it, and mandating extra counseling. (The drug is one of the 5% of drugs over which the FDA has exercised strict control despite mifepristone’s decades-long, excellent safety record.) The FDA removed the in-person dispensing requirement in December 2021 after concluding it was unnecessary for patent safety; the agency now allows providers to mail their patients mifepristone and certified pharmacies to dispense it.

Nonetheless, numerous state laws control mifepristone’s prescription and dispensation much more strictly than the FDA. These laws directly conflict with the FDA’s safety decisions. Nineteen states, for instance, require in-person abortion care even though the FDA found it unnecessary. And 32 allow only doctors to prescribe medication abortion even though the FDA decided that non-physician providers can safely and effectively prescribe the drug. There are others too, like another recent Texas law, S.B. 4, that bans medication abortion after seven weeks of pregnancy even though the FDA has approved it through the first 10 weeks. These state statutes may be preempted, and a legal challenge on that theory could therefore invalidate them.

Read More: Inside Mississippi’s Last Abortion Clinic—and the Biggest Fight for Abortion Rights in a Generation

Congress created the FDA’s national drug review system with a purpose of establishing national uniformity. The Supreme Court has previously said that a drug manufacturer should not have to stop selling its product in a state to comply with both federal and state laws. In a post-Roe world, this argument could extend even further to poke holes in bans on all abortion or extreme laws like S.B. 8 by forcing states to allow medication abortions.

The blueprint for this preemption challenge has already been successful against a state’s attempt to ban, and then regulate, a new opioid more stringently than the FDA. In a 2014 case, a court invalidated the state’s regulation as preempted even though the state was acting with an established, evidenced-based safety interest. The different trajectories of opioid and abortion regulation—the former entering the market with less stringent control and the latter subject to the most restrictive measures—makes the preemption argument stronger for abortion, as do the decades of research providing mifepristone’s safety.

But preemption goes even further when considering other federal laws. In response to Texas’s S.B. 8, Health & Human Services (HHS) Secretary Becerra announced that the Emergency Medical Treatment and Labor Act (EMTALA) requires emergency departments to treat pregnant patients and those experiencing pregnancy loss and that any contrary state law would be preempted. Thus, if doctors or hospitals refuse to provide medically necessary abortions—those to save the life or health of the mother—because of state abortion bans, those people can sue the hospitals and providers that refused them.

Read More: What We Fear in the Wake of the Texas Abortion Law

EMTALA preemption might also have more interesting and complex implications. As legal abortion becomes even less available, more women will terminate their pregnancies with abortion medication on their own, without professional oversight or permission, sometimes illegally. Complications from self-managed medication abortion, which occur very rarely, are indistinguishable from incomplete miscarriage. Thus, women needing additional care after self-management in places where abortion is illegal will present at emergency rooms. In these cases, EMTALA would require doctors to treat these patients, even if they suspect abortion and even if treatment requires finishing an abortion.

These examples show potential at chipping away at state restrictions—repurposing the decades-long anti-abortion strategy of chipping away at abortion rights. It may seem pointless to wager that our federal courts, especially a majority of the Supreme Court, would agree that state abortion laws are preempted in the way we argue here. But courts’ composition change, and not all judges in the United States would be hostile to these arguments. With the end of Roe looming, the abortion-rights movement must take creative and bold actions to secure abortion access in hostile states. If opioid manufacturers can convince a court to invalidate a state ban on a potentially addictive drug, surely there is reason to think a court might invalidate a similar ban on a drug with mifepristone’s outstanding safety record. The FDA and HHS can help usher in that protection by making clear that not all the power to regulate abortion lies with state legislatures.

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