The administration of US President Joe Biden has said it will seek to prevent states from banning abortion pills in light of a Supreme Court ruling overturning Rowe’s remarkable ruling, signaling a new major court battle.
The administration may argue in court that the US Food and Drug Administration’s (FDA) approval of mifepristone, one of the pills used for medical abortions, precedes state restrictions, which means that federal authorities prevail over any state action.
The same argument has already been raised by Las Vegas-based GenBioPro Inc., which sells a generic version of the pill, in a lawsuit challenging Mississippi’s restrictions on medical abortion.
More than a dozen states plan to ban Rowe-style abortions against Wade almost completely. In a stunning ruling, the Supreme Court overwhelmingly overturned Rowe on Friday, saying it had no right to abortion in the US Constitution.
The court, in decision 6-3, upheld the Republican-backed Mississippi law, which bans abortions after 15 weeks of pregnancy. The vote was 5-4 to repeal Rowe against Wade, with Conservative Chief Justice John Roberts writing separately to say he would support the Mississippi law without taking the extra step of erasing Rowe’s precedent completely.
States are likely to face other difficulties in imposing restrictions on medical abortion, as women are still likely to be able to get the pills online or in other countries. The FDA allows medical abortion during the first 10 weeks of pregnancy.
Biden said in remarks following the Supreme Court ruling that the government would seek to protect access to medical abortion, saying efforts to curb it would be “wrong and extreme and out of touch with the majority of Americans.”
Attorney General Merrick Garland was more explicit about what the Department of Justice is looking at, saying in a statement: “The United States cannot ban mifepristone based on disagreement with the FDA’s expert assessment of its safety and efficacy.
A practicing nurse works in an office at a planned parenting clinic while containers of drugs used to terminate an early pregnancy sit at a table nearby in Fairview Heights, Illinois, in October 2021 (Jeff Roberson / Associated Press).
Preventive redemption law murky
Mifepristone was approved for use in abortions by the FDA in 2000, long after Roe’s decision in 1973. The pill, also known as RU 486, blocks the pregnancy hormone progesterone, while the other drug used, misoprostol, causes uterine contractions. .
Greer Donley, a professor at the University of Pittsburgh Law School who is an expert on reproductive rights, said the administration’s position “shows that they understand the stakes and are ready to pursue new ideas.”
Even before Roe was repealed, states imposed restrictions on access to the pill. There are 19 states that require women to make a personal visit to receive the drug, according to the Gutmacher Institute, a research group that supports the right to abortion.
The FDA does not require a face-to-face meeting.
Legal experts argue that the law on preventive redemption is unclear because Congress has never explicitly said that FDA approval is superior to state law, as it has been in the context of medical devices. It will therefore be left to the courts to decide the matter according to a theory known as “implicit anticipation”.
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The decision of the US Supreme Court to overturn Rowe against Wade is a long-awaited victory for some Americans and a terrible loss for others. The country will soon ban or ban abortions in 25 states.
The widespread availability of medical abortion in states that want to limit or ban the procedure would be a major obstacle for abortion fighters who have long sought to ban abortion altogether.
Attempts to challenge state restrictions may fail in the Supreme Court, not only because the Conservative majority of 6-3 has shown its opposition to abortion rights, but also because judges are often skeptical of federal claims for precedence.
With the abolition of Roe, states will also have more leeway to claim that they have a separate interest in preventing abortion on the basis of moral objections to abortion.
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