WASHINGTON, May 26 (Reuters) – The U.S. Supreme Court has yet to issue its ruling that is expected to drastically curtail abortion rights, but one of the next legal battles has already begun in a Mississippi court. .
It’s where the maker of a pill used to perform medical abortions, Las Vegas-based GenBioPro Inc, filed a federal lawsuit challenging conservative state restrictions on the pill, used in more than half of all abortions in the United States.
Litigation over medical abortion, which is approved for use up to 10 weeks pregnant, is expected to take center stage if the Supreme Court reverses or reverses Roe v. Wade in 1973 which legalized abortion nationwide.
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This case, also from Mississippi, concerns the state’s efforts to ban abortions after 15 weeks of pregnancy. Read more
GenBioPro sells mifepristone, one of two drugs used in medical abortion. The company argued in a 2020 lawsuit that Mississippi’s restrictions on the pill conflicted with the United States Food and Drug Administration‘s approval for use in abortions. In legalese, GenBioPro claims that state law is preempted by FDA approval, which means that federal authority supersedes any state action.
The more than a dozen states that plan to almost completely ban abortion if Roe is overturned will have difficulty enforcing restrictions on medical abortion, as women are still likely to be able to obtain the pills online or in other states.
“In a world without Roe, medical abortion becomes the big challenge for those states that want to regulate abortions,” said University of Pittsburgh Law School professor and reproductive rights expert Greer Donley.
GenBioPro’s lawsuit, which legal experts say is lengthy, targets various Mississippi requirements, including one that says women must take the pill in the presence of a doctor. Mississippi is one of 19 states that require women to go in person to get the drug, according to the Guttmacher Institute, a research group that supports abortion rights.
The FDA does not require an in-person meeting.
The Mississippi restrictions “upset the balance the FDA has struck between mitigating risk and ensuring access to a safe and effective drug,” the GenBioPro lawsuit said. The company, through its lawyers, declined to comment.
The state asked in a court filing that the lawsuit be dismissed, saying there was “no evidence that Congress ever intended the FDA to have the power to overrule a state’s ability to regulate in the controversial and highly sensitive area of abortion”.
A spokesperson for Mississippi Attorney General Lynn Fitch, who defends the state restrictions, declined to comment.
The judge has yet to rule.
Mifepristone was approved for use in abortions by the FDA in 2000, long after Roe’s decision. The pill, also known as RU 486, blocks the pregnancy-maintaining hormone progesterone, while the other drug used, misoprostol, induces uterine contractions.
GenBioPro’s legal theory is new with respect to FDA approved drugs. One of the few similar cases involves an opioid that Massachusetts tried to ban. A federal judge in 2014 ruled that federal approval of the drug preempted state efforts to ban it.
Legal experts say the law is murky because Congress has never explicitly said that FDA approval trumps state law as it has in the medical device context. Therefore, it would be for the courts to decide the issue under a theory known as “implied preemption”.
Wide availability of medical abortion in states that wish to restrict or ban the procedure would be a major setback for anti-abortion activists who have long sought to ban abortion outright.
Katie Glenn, a lawyer for anti-abortion group Americans United for Life, said her organization wants abortion bans to cover medical abortion, but that doesn’t mean mifepristone, which has been prescribed for other purposes , should be totally prohibited.
“It’s not about banning the drug. It’s about stopping abortions,” she said.
Attempts to challenge state restrictions could fail in the Supreme Court, not only because the 6-3 conservative majority has shown opposition to abortion rights, but also because judges are often skeptical of claims federal pre-emption.
“The court has generally taken an anti-preemptive streak and has been skeptical of arguments that state law generally frustrates the interests of the federal government,” said Ilana Eisenstein, a Philadelphia-based attorney who has argued cases before the judges.
If Roe is overturned, states would also have more leeway to assert that they have a distinct interest in preventing abortions based on moral objections to abortion.
“I think there’s reason to think states can’t ban an FDA-approved drug,” Donley said, “but it gets a lot more complicated in a post-Roe world when a state bans the drug. ‘abortion.”
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Reporting by Lawrence Hurley; Editing by Scott Malone and Lisa Shumaker
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