Skirmishes Over Medication Abortion Renews Debate on State vs. Federal Powers

Medication abortion is an option during the first 10 weeks of pregnancy and involves taking two pills: mifepristone, a drug that blocks hormones necessary for the pregnancy, followed by misoprostol, which helps empty the uterus. In 2020, medication abortions became the most common method, accounting for more than half of all U.S. abortions. Most abortions are performed at or before 13 weeks of gestation. Medication abortions became available in the U.S. when the FDA approved mifepristone in 2000. Currently, it is available for use in all 50 states.

State Restrictions and Legal Challenges

Some state lawmakers opposed to abortion have introduced a flurry of bills to limit or ban medication abortion. For instance, South Dakota’s legislature approved a measure that bans the pills, though it is now ensnared in legal challenges. Furthermore, thirteen states have restrictive “trigger laws” on the books that would kick in if Roe is undone. These vary widely but would effectively ban abortions overall, with few exceptions. Texas, which has a trigger law, also enacted a law last year that outlaws abortion after the detection of embryonic or fetal cardiac activity, typically around six weeks and often before people realize they are pregnant. Additionally, a new Oklahoma law, which took effect May 25, bans most abortions by defining life as beginning at fertilization.

The Strategy of Federal Preemption

One strategy involves preserving the availability of the medication used to initiate an abortion in states poised to restrict access otherwise. Such a move would require that federal law take precedence over a state’s — a concept known as preemption. Some legal and drug regulatory experts argue that because the FDA is the federal agency responsible for protecting public health by ensuring the safety, efficacy, and security of human drugs, states wouldn’t have the power to overrule its stamp of approval and outlaw the abortion pill. In other words, “FDA policy governing mifepristone could preempt states’ ban of medication abortion,” said Rachel Rebouché, interim dean of Temple University’s Beasley School of Law and an expert in reproductive health law.

Legal Uncertainty and Federal Action

“Federal preemption for abortion medication is a highly innovative legal strategy with considerable uncertainty,” said Lawrence Gostin, a professor of global health law at Georgetown University. “There’s no telling how it will play out in the courts.” However, the Department of Justice could turn to the courts to intervene against a state or group of states that were to ban or restrict the use of mifepristone for medication abortion. Gostin said he has talked to the Biden administration about this being a potential course of action to ensure people still have access to abortion. Some Democratic lawmakers, including Sen. Elizabeth Warren (D-Mass.), endorse the idea, stating, “I’m totally in favor of the administration taking every possible opportunity to make medication abortions more widely available.”

Overview of Medication Abortion Facts