Even before the Supreme Court reverses Roe v. Wade, as most court watchers expect it to do this June, the legal battle about the aftermath of the decision is getting underway. By far the most consequential aspect of the fight is likely to be about state attempts to regulate medical abortions using the drug mifepristone.
For pro-choice advocates, mifepristone represents the only cost-effective workaround for women who want to end unwanted pregnancies but who live in the 25 or more states that will ban abortion after Roe is overturned. Some people have the means to travel out of state for surgical abortions. And, with enough financial support, some national organizations might be able to help pay the way for those who cannot afford the trip and the surgery.
(Some states are going to try to bar travel for abortion purposes, but such bans are likely to be held unconstitutional even by the current court.)
In contrast, if it were possible to speak to an out-of-state doctor online and get pills in the mail that would end a pregnancy, then many women would still be able to choose whether to carry their fetuses to term, regardless of state law. During the COVID pandemic, the Food and Drug Administration eliminated its requirement for an office visit to dispense mifepristone. The Joe Biden administration has announced plans to make that rule change permanent.
Thus, if mifepristone were widely available, the reversal of Roe might not be so disastrous for many women. The effects could be mitigated, maybe even substantially so.
Conversely, for the pro-life camp, widespread distribution of mifepristone by telemedicine could render their long-sought Supreme Court victory more symbolic than effective. To be sure, some people who say they are pro-life might secretly prefer for the reversal of Roe to leave the real-world option of abortion open for them and their loved ones. But for the official movement, and for those who genuinely believe abortion is murder, it would be perceived as a tragedy if abortion numbers did not go down toward zero in the states that outlawed it.
To understand the legal side of the fight that is emerging, you need to start with the weirdness of the legal regime governing medicine in the U.S. — a weirdness derived from the federal structure of the Constitution. On the one hand, licensing doctors is mostly a matter of state law. On the other hand, Congress has given the FDA, a federal agency, the authority to approve the use of medications.
The constitutional justification for this federal authority is that drugs affect interstate commerce. Congress has broad authority to make laws in that realm.
And ordinarily, when Congress has occupied an area of law within its authority, states can’t pass laws that contradict federal law. The Constitution says that the Constitution itself and the laws the U.S. enacts under it are the supreme law of the land.
On top of this split structure, factor in state criminal law. States are entitled to make criminal laws governing conduct that takes place within their states. That jurisdiction can cross state lines under some circumstances. If I live in Massachusetts and hire someone to commit a crime in New York, I can be charged in New York state court even though I never left home.
Same for drugs. If a state outlaws marijuana, it can say that no one from the outside may send the drug to somebody inside the state, even from a state where pot is legal. So states that are going to outlaw abortion are also now starting to enact laws that will ban sending mifepristone into their states.
When it comes to telemedicine, states ordinarily can make laws affecting the care of their own citizens. But there is a credible legal argument that states should not be able to ban mifepristone, because it is a drug approved by the FDA — a federal agency. According to this argument, Congress and the FDA have occupied the field of drug regulation, thus preempting states from legislating in a way that bars a drug approved by the federal government.
So can mifepristone restrictions imposed on outside doctors be characterized as a permissible state regulation of medical practice within that state’s authority? Or are such laws an impermissible state interference with federal drug regulations? The courts, and eventually the Supreme Court, will have to address the issue.
Even if the justices side with the states, the problem — or, depending on what side you’re on, the solution — will not go away. It’s conceivable that some organizations, say those outside the U.S., may be willing to send mifepristone through the mail in violation of state laws. An illegal mifepristone trade is likely to emerge. It will give rise to litigation.
Ideally, and legally, no one should be taking any kind of medication without a prescription. But if abortion is outlawed, medical abortion will be, de facto, the only option for women who do not want to continue with their pregnancies but who are unable to travel out of state. Expect to hear much, much more about it in the months and years to come.
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ABOUT THE WRITER
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
