December 3, 2023

Washington – With the Justice Department’s recent warning to states not to ban a federally approved drug that leads to abortion after the Supreme Court overturned Roe v. Wade, the Biden administration has indicated that medical abortion may be the next front in the fight to preserve abortion rights in states that restrict access.

Twenty-two years ago, the Food and Drug Administration (FDA) Approved Mifepristone To be taken with a second medication – for use in terminating a pregnancy within 10 weeks of pregnancy. Last December, the agency raised condition The medication is dispensed in person, allowing it to be prescribed by the provider through a telemedicine appointment and sent to the patient by mail.

But the ruling of the Supreme Court Ending the constitutional right to abortion Late last month it put abortion access in the hands of elected state officials and paved the way for Republican-led legislatures to enact Spree of the new frontierincluding the prohibition of all forms of abortion and restrictions on medical abortion.

In 19 states, a physician providing medical abortion must be physically present when the drug is administered, which limits the use of telemedicine, and two states prohibit the use of medical abortion starting at a certain stage of pregnancy, According to the Guttmacher Institute, A research organization that supports abortion rights. Thirty-two states only allow physicians to provide mifepristone, even when the FDA allows approved health care providers to prescribe the drug.

But Attorney General Merrick Garland said following the court’s strict ruling that states could not ban mifepristone “on the basis of disagreement with FDA experts’ judgment on its safety and efficacy,” suggesting that the Department of Justice could take legal action against states trying to do so.

One possible argument by the Department of Justice to protect access to mifepristone is that FDA regulations are superior to state laws limiting medical abortion, a concept known as preventive measures.

“The point here is that the federal government said mifepristone was safe and effective and gave it a license to sell it in every state in the United States,” Hill said. “No country can turn around and block it. This is one legal theory, and the Department of Justice can go to court and sue that theory.”

But Hill noted that there are obstacles to pursuing such a strategy.

“One of the challenges is that you have to show a clear conflict, and it’s not clear that there is conflict,” she said. “The situation is very precarious, but there may be some obstacles in such a lawsuit.”

The safeguards argument is currently being tested in federal court, with the drug company GenBioPro, which makes generic mifepristone, the tough requirements imposed by Mississippi officials prior to dispensing the drug. Mississippi is also among the 13 states with a domain “trigger law” Under it, nearly all abortions, including medical abortions, were banned in the state with the Supreme Court ruling overturning Roe.

in message Before a federal district court judge in Jackson, Mississippi, the company’s attorneys said the Supreme Court ruling “does not revoke the FDA’s authority under the sovereignty clause nor allow Mississippi to block an FDA-approved drug.”

“Current Mississippi restrictions on mifepristone are already upsetting the balance that the FDA has struck between mitigating risk and ensuring access to a safe and effective drug,” they wrote. “A ban would distort this balance and would greatly contravene the supremacy clause.”

In addition to asserting that FDA approval trumps conflicting state laws, Hill said the Department of Justice could argue that the ban on abortion pills also violates the Idle Trade Clause, which states that states cannot impose regulations that place a heavy burden on interstate commerce.

Still, she said, “it’s an unresolved question here.” “There are cases that can point in both directions, and another possible legal theory, but not one without difficulties,” as the doctrine’s focus is on prohibiting economic protectionism.

As the Department of Justice charts its legal course to protect access to medical abortion, Deputy Attorney General Lisa Monaco said last week that the department will closely assess all new restrictions on abortion pills.

“We will not hesitate to take very seriously, examining the details of every challenge, every law that is passed in various countries, and we will do everything in our power to support the rights of citizens in the countries in which the countries presented,” she said in Event in Washington.

President Biden also directed the Department of Health and Human Services (HHS) to make efforts to ensure that medications such as mifepristone are available “to the extent possible, and that politicians cannot interfere in decisions that should be made between a woman and her physician.” In response to this directive, HHS Secretary Xavier Becerra Section said It will work to increase access to medical abortion, including working with the Department of Justice to ensure that “states may not prohibit medical abortion, based on disagreement with FDA experts’ judgment on drug safety and efficacy.”

But abortion advocates are urging the Biden administration to do more.

Nancy Northup, president and CEO of the Center for Reproductive Rights, a legal group that represented the only abortion clinic in Mississippi in the dispute that led to Roe’s reversal, said Biden should declare an abortion public health emergency.

This is a step, hey Books in the Washington Postwould give HHS the ability to help patients obtain abortion care wherever they are, and enable out-of-state prescription and dispensing of abortion pills in states with outright bans on the procedure.

Northup Besira also called for a public health emergency to be declared under the Public Emergency Preparedness and Preparedness Act, which allows the Minister of Health to Make an announcement Protects providers, patients, and pharmacists who provide abortion pills in restrictive situations from liability. She said the declaration would replace the state-imposed abortion ban that covers medical abortion.

“We need a national standard that guarantees access to abortion, which Biden rightly said Congress should legalize,” she wrote. “But in the meantime, the administration must take the first step toward restoring national protection: declaring a public health emergency now and making sure that medical abortion is available nationwide.”

Jennifer Driver, director of reproductive rights for the State Innovation Exchange, an organization that works with progressive state legislators nationwide, believes the administration needs to provide more clarity about its plan to maintain access to abortion.

“It is not enough to say, ‘We are going to make sure that people receive the abortion pill in their state and not limit the abortion pill to their states. It is not enough to say that,'” she told CBS News. “How are you going to do that? What mechanisms are you going to put in place? What is the plan?”

She also criticized Biden and Vice President Kamala Harris’s repeated calls for voters to cast ballots for state and federal lawmakers who would protect abortion rights, calling it a “defeat” for the administration to point to the vote as an answer to abortion limits already enacted in Republican-led states in Following the Supreme Court’s decision.

“We want to hear a clear and final plan from the federal government,” she said. “Something that goes beyond ‘voting'”.

Robert Legere contributed to this report.

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