The Next U.S. Abortion Battle Over medication pills
The next U.S. abortion battle is over pills, and it's already begun. Litigation over medication abortion, approved for use at up to 10 weeks of pregnancy, is likely to take center stage should the Supreme Court gut or overturn the 1973 Roe v. Wade decision that legalized abortion nationwide.
The Mississippi Lawsuit and Federal Authority
One of the next legal battles has already begun in a Mississippi court. That is where the manufacturer of a pill used to carry out medication abortions, Las Vegas-based GenBioPro Inc, has filed a federal lawsuit challenging the conservative state's restrictions on the pill, used in more than half of all U.S. abortions. GenBioPro sells mifepristone, one of two drugs used in medication abortion.
The company argued in a 2020 lawsuit that Mississippi's restrictions on the pill conflict with the U.S. Food and Drug Administration's approval for use in abortions. In legal jargon, GenBioPro says the state law is pre-empted by the FDA's approval, meaning federal authority trumps any state action. The Mississippi restrictions "upset the balance that the FDA struck between risk mitigation and ensuring access to a safe and effective medication," the GenBioPro lawsuit said.
Understanding the Medication
Mifepristone was approved for use in abortions by the FDA in 2000, long after Roe was decided. The pill, also known as RU 486, blocks the pregnancy-sustaining hormone progesterone while the other drug used, misoprostol, induces uterine contractions.
| Subject | Details from Material |
|---|---|
| Mifepristone Approval | Approved for use in abortions by the FDA in 2000 |
| Scope of Usage | Used in more than half of all U.S. abortions |
| Medication Window | Approved for use at up to 10 weeks of pregnancy |
| State Requirements | 19 states require an in-person visit to obtain the drug |
Legal Challenges and Theory
GenBioPro's legal theory is a novel one when it comes to FDA-approved drugs. GenBioPro's lawsuit, which legal experts say is a long shot, takes aim at various Mississippi requirements, including one that says women are required to take the pill in the presence of a doctor. Legal experts say the law is murky because Congress has never said explicitly that FDA approval trumps state law as it has done in the context of medical devices.
Therefore it would be left to courts to decide the question under a theory known as "implied preemption." However, the state asked in a court filing that the lawsuit be thrown out, saying there is "no evidence that Congress ever intended the FDA to have the power to nullify a state's ability to regulate in the controversial and highly sensitive area of abortion."
Impact on Abortion Bans
The more than a dozen states that plan to almost totally ban abortion if Roe is overturned will face difficulties enforcing restrictions on medication abortion because women are still likely to be able to obtain the pills online or in other states. "In a world without Roe, medication abortion becomes the big challenge for these states that want to regulate abortions out of existence," said Greer Donley, a professor at the University of Pittsburgh School of Law who is an expert on reproductive rights.
Wide availability of medication abortion in states that want to restrict or ban the procedure would be a major setback to anti-abortion campaigners who have long sought to ban abortion outright. Katie Glenn, a lawyer at anti-abortion-rights group Americans United for Life, said her organization wants abortion bans to cover medication abortion but that does not mean that mifepristone, which has been prescribed for other purposes, should be barred altogether.