In a post-Roe America, abortion medication looms as the next legal battleground

The overturning of Roe v. Wade has sparked legal battles across the U.S., asindividual state trigger laws that restrict access to abortion procedures.But the legalstatus of medicationused to terminate pregnancy could see the fight enteran even-murkier legal zone.

Since the U.S. Supreme Court ruling last month, states that have restrictedabortionhave made it clear this also applies to abortionthrough medicationa method now used in more thanhalf of all abortions in the country.

But that has raised questions about enforcement of such laws,and whether states actually have the power to ban drugsapproved by the U.S. Food and Drug Administration (FDA).

It alsomeans that it'svery likelythe country's top court isn't finished with the issue of abortion.

"It would almost certainly end up back at the Supreme Court, and there's no telling how the conservative justices will rule," said Lawrence Gostin, the faculty director of the O'Neill Institute for National and Global Health Lawat Georgetown University in Washington, D.C.

2 drugs used for medicalabortion

A two-pill regimen isused for medical abortion mifepristone and misoprostol which is approved foruse in the first 10 weeksof pregnancy.

Mifepristone,taken orally, prevents an existing pregnancy from progressing by dilating the cervix and blocking the effects of the hormone progesterone, while misoprostol, taken 24 to 48 hours later, works to empty the uterus by causing cramping and bleeding, similar to an early miscarriage.

The use of the medication can be self-managed at homeand no medical procedure is necessary afterward.But the drugs are subjectto restrictions at both the state and federal levels.

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Renewed focus on abortion pills in wake of U.S. Supreme Court decision

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Kate Kelly, with the advocacy group Shout Your Abortion, says multiple groups in the U.S. are working to educate people about the availability of abortion medication after Roe v. Wade was overturned.

For years,the FDA required that individuals seekingmifepristone go to a medical clinic to acquire it. But in December 2021, amid the COVID-19 pandemic,the federal agency lifted that requirement, meaning the drug could be obtained by mailalthough it would still need to be prescribed by a certified health-care provider.

With some states now banning abortion medication, pregnant people in those jurisdictionswill have to either travel to another state where abortion remains legalor have the pills mailed to them from those states or abroad through organizations such as Aid Access, a European non-profit organizationthat mailspills to women in the U.S.

This newbattlegroundhad started to form before the Roe ruling,as somestates had made the legally nebulous decision to banthe practise of telemedicine abortion and prohibit residents from receiving abortion medication by mail.

Still, the enforcement of such laws may face challenges.

Enforcement challenges

Targeting people's mail, for example,would be difficult for state authorities, who have no jurisdiction withthe U.S. Postal Service, an independent federal agency, explainedRachel Rebouch, an expert on reproductive health law and the interim dean of Temple University Beasley School of Law in Philadelphia.

"States don't have the authority just to ransack the mail without a warrant," she said."I think it's hard [to enforce]. States could get warrants; they couldpotentially police the mail. But that's difficult andthey probably know that."

It's possible states could treat abortionmedicationlike illegal drugs, going after individuals for possession.But many anti-abortion groups have said they don't support criminalizing abortion patients.

Medication-banning states couldalso seek to prosecute across borders.

A draft paper co-authoured by Rebouch titled "The New Abortion Battleground" and set topublishin the Columbia Law Review raises the issue, suggesting that "out-of-state, as well as out-of-country, providers could be guilty of state crimes by offering these telehealth services."

"In a post-Roe world, anti-abortion states will struggle to establish jurisdiction over these out-of-state providers, while abortion-protective states will attempt to protect their providers from out-of state prosecutions," the authors write.

On the other side, somestates where abortion remains legalhave introduced laws to protect abortion providers from extradition to states where the practice isbanned.

But Gostin saidit would be extremely difficult for one state tocharge or penalize a health-care provider who prescribes abortion medication in another state. "States have no jurisdictionoutside of their state boundaries."

Federal court case over ban on pills

As the country's abortion laws continue to shift,individual states couldeventually find themselves in legal battles over the FDA's approval of abortion medication.

Shortly after the Supreme Court ruling, Attorney General Merrick Garland released a statement, hinting at how some abortion restrictions might be fought.

"We stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care," he said. "In particular, the FDA has approved the use of the medication mifepristone. States may not ban mifepristone based on disagreement with the FDA's expert judgment about its safety and efficacy."

Many legal eyes are also locked on a case beforea federal judge in Jackson, Miss., thatinvolvesthe maker of a generic version of the drug.

GenBioPro Inc.is arguingthat the FDA's approval of mifepristone should override any state ban and the overturning of Roe v. Wadedoes not allow Mississippi to stop it from selling the pills in the state.

That argument is the theory of "pre-emption," saidAmanda Allen,senior counsel and director of the Lawyering Project, an organization that represents abortion providers.

"[It's] the idea that if the federal government has kind of stakedits claim in an area of law, that federal law will trumpstate law," Allen said.

In the Mississippi case, she said, that would meanthe FDA, byregulating, approving and puttingrestrictions onmifepristone, has essentially"occupied the field and that state lawto the contrary should be invalidated."

Gostin agreed thatthe FDA may assert supremacy and that its scientific approval of abortion pills should pre-empt any state law that bans or restricts that access.

"The U.S. Department of Justice could challenge any state restriction on abortion medication, based on the claim that FDA sets a national uniform standard based on science," he said. "States can't pick and choose which FDA-approved drugs it will and won't allow."

States could argue, however,that things have changed since the overturning of Roe v. Wade.

Mississippi, for example, said in an opposing filing that "the legal landscape has shifted overwhelmingly in favour of the state's authority to regulate or prohibit abortion," andthat there was no evidence that Congress ever intended the FDA to restrict states' ability to regulate abortion.

"There's lots of arguments that states can make," Rebouch said. "They can say they're not trying to regulate safety; they're trying to regulate morality or protect potential life.

"They could say that this was not the congressional purpose in giving the FDAthispower."

Katie Watson, a constitutional scholar and medical ethicist at the Feinberg School of Medicine at Northwestern University, recently told the New York Times thatthe ability of the federal government to assert that the FDA's approval takes precedence over state laws islimited,"given, traditionally, states get to regulate the practice of medicine."

Issue not yet legally tested

Rebouch described thewhole legal issue as a kind of a"novel incident," she said, "where half the country is going to try to ban an FDA-approved drug."

While the issue is being debated, she said it hasn't really been legally tested yet. "So it would have pretty huge consequences."

If afederal court said statescannot regulate orban medicationabortion, based on the pre-emption theory,that would certainly have national implications, said Allen.

"The real question is whether the Supreme Court, as currently constituted, would uphold that kind of a ruling."