Reproductive Justice Update

States Cannot Ban FDA-Approved Abortion Pills

Attorney General Merrick Garland urged the FDA to sue any states trying to ban mifepristone after the Supreme Court overturned ‘Roe v. Wade.’

Mifepristone (Mifeprex) and Misoprostol, the two drugs used in a medication abortion, are seen at th...
ROBYN BECK/AFP/Getty Images

In the wake of the Supreme Court’s decision to overturn Roe v. Wade, Attorney General Merrick Garland issued a statement declaring that states cannot ban mifepristone, an FDA-approved medication used to induce an abortion during the first 10 weeks of pregnancy. He also said that states cannot restrict a person’s ability to travel across state lines to obtain an abortion.

“Today’s decision does not eliminate the ability of states to keep abortion legal within their borders...[The Department of Justice stands] ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care. In particular, the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” Garland said.

Basically, since these abortion medication is approved by a federal agency, a state’s law cannot ban it, thanks to the Constitution’ Supremacy Clause.

“This decision deals a devastating blow to reproductive freedom in the United States. It will have an immediate and irreversible impact on the lives of people across the country. The Justice Department will use every tool at our disposal to protect reproductive freedom,” Garland said. “And we will not waver from this Department’s founding responsibility to protect the civil rights of all Americans.”

Still, reproductive justice advocates and organizers know that the abortion pill will continue to be a topic of contention. Currently, 19 states have laws that ban doctors from prescribing the abortion pill through telemedicine, even though the FDA permanently removed the in-person requirement back in December.

The legality of the abortion pill has already entered the courts in some states. GenBioPro Inc., a manufacturer of the medication, is challenging Mississippi’ legislation that requires patients to see a doctor in person, rather than telemedicine, in order to obtain the medication.

As more states’ trigger laws go into effect and conservative states follow the lead of states like Texas and Oklahoma that have all-but-outlawed abortions, the fight for the legality of the abortion pill will continue.