WASHINGTON — Attorney General Merrick Garland indicated Friday that the Justice Department will fight any Republican effort to restrict access to abortion pills after the Supreme Court overturned Roe v. Wade, paving the way for potential legal battles with some GOP-led states.
“The Department of Justice will work tirelessly to protect and advance reproductive freedom,” Garland said in a statement. long statement after the Supreme Court decision.
He said the department is “ready to work with other branches of the federal government that seek to use their legal authorities to protect and preserve access to reproductive care. In particular, the FDA has approved the drug’s use. mifepristone. States cannot ban mifepristone based on disagreement with the FDA’s expert judgment on its safety and efficacy.”
The two-drug regimen of medical abortion, as it is clinically known, was first approved by the Food and Drug Administration in 2000. People have been able to get mifepristone by mail since last year, when , due to the pandemic, the FDA suspended a requirement that it be administered in person. The agency made this option permanent in December.
In a separate statement Friday, the White House said it was working to make the drug, which can be used up to 10 weeks pregnant, widely available.
“Faced with threats from state officials that they will try to prohibit or severely restrict access to reproductive health care drugs, the President directed the Secretary of Health and Human Services to identify all means to ensure that mifepristone is as widely available as possible in light of the FDA’s determination that the drug is safe and effective, including when prescribed via telehealth and delivered by mail,” said the White House.
Thirteen states have enacted trigger laws that will ban all or nearly all abortions, including medical abortions, following Roe’s overthrow.
Legal experts predicted there would be numerous legal challenges following Friday’s court ruling.
Khiara M. Bridges, a law professor at the University of California, Berkeley, said “there is an open legal question as to whether states could limit the use of mifepristone in light of the FDA ruling. that the drug is safe and effective. It’s not at all clear.”
While the FDA can declare the drug safe, Bridges said, “states can regulate the practice of medicine within their borders.”
The drug’s maker, GenBioPro, complaint lodged against Mississippi in October 2020 challenging a state law that impedes access to drugs, claiming the law is contrary to federal law. The case is still waiting.
Bridges said the Justice Department could sue any state restricting access to the drug, but noted that such challenges could take years to work their way through the courts. “I think we’re going to see a lot of legal issues,” she said.
Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University, said it was unclear “whether the FDA can anticipate a state ban” on mifepristone.
“We don’t have a Supreme Court decision on [this] point, and even if we did, we have a Supreme Court ready to reverse the decisions,” Parmet said. “This court is emboldened and ready to change the law. It means a lot of things we think we know that we don’t, because everything is up for grabs right now.
Amanda Allen, senior counsel at the Lawyering Project, a group that represents abortion providers, called Garland’s comments about mifepristone “very vague.”
“It’s not clear from the language of the statement what he actually plans to do,” Allen said.
In her statement, Garland also said the Justice Department would fight any attempt to penalize women who travel to another state to have an abortion.
“We recognize that travel for reproductive care may not be possible in many circumstances. But under fundamental constitutional principles, women who reside in states that have prohibited access to comprehensive reproductive care must remain free to seek this care in states where it is legal,” Garland said.
A bill introduced in Missouri earlier this year that would make it illegal to ‘aid or abet’ an abortion for a Missouri resident out of state has been blocked by lawmakers in March.
In a concurring opinion to overturn Roe on Friday, Judge Brett Kavanaugh suggested such a move could be unconstitutional.
“[M]Can a state prohibit a resident of that state from traveling to another state to have an abortion? In my view, the answer is not based on the constitutional right to interstate travel,” Kavanaugh wrote, addressing what he called “some of the other abortion-related legal issues raised by the decision. of today”.
In his statement On Friday, the White House said it would fight any effort to prevent a woman from crossing state lines to have an abortion.
“A person has the right to travel interstate for any reason they want — it’s nobody else’s business — especially the government’s,” the White House said. “If any state or local official tries to interfere with women exercising this fundamental right, the Biden administration will fight this deeply un-American attack.”
Allen of the Lawyering Project said there are no state laws prohibiting women from having abortions in another state, and that Garland was “maybe trying to get out in front of some of the things you’re going to see next.”
Parmet of Northeastern University said one thing is clear: the country is heading into uncharted legal waters.
“What’s coming are more court battles, more litigation, more controversy, more heated battles,” she said. “It’s the only thing we know is happening.”