Showdown looms between States and Biden administration over “medication abortion”

By Dave Andrusko

Editor’s note. Today is President’s Day, a federal holiday. We’re running stories from the past that you’ve indicated you particularly like. We’re back on Tuesday will the latest pro-life updates.

On Wednesday, GenBioPro, one of company that makes mifepristone, the first of two drugs used in medication abortion, filed a case in federal court in West Virginia arguing that it is unconstitutional for a state to bar access to a medication approved by the federal government.

In a wholly sympathetic and one-sided story, Pam Belluck of the New York Times wrote

Recent articles by legal scholars and experts on drug and medical policy have made the case that the federal government has overarching authority to approve and regulate medications, a question only a few previous legal cases have tested.

NRLC General Counsel James Bopp, Jr. responded that “while the FDA has the authority to permit the use of drugs and medicines, this authority does not prohibit states from regulating them also. This is another example of the Biden administration unlawfully trying to seize federal power to advance their radical pro-abortion agenda.”

“Furthermore, other legal observers have noted that in overruling Roe and Casey, the Court in Dobbs held that the U.S. Constitution does not guarantee a right to abortion,” said Federal Legislative Director Jennifer Popik, JD. “Further, the Court changed the standard under which laws restricting abortion are evaluated. Abortion restrictions will now be evaluated under a rational basis review standard that is generally deferential to lawmakers.  Under a rational basis review, a court should conclude that a state restriction is rationally related to a legitimate government interest, such as protecting unborn life.”

The lawsuit case represents a preliminary showdown between federal regulations, which under the Biden administration are systemically being dismantled, and state regulations, which are far more leery of the dangers of chemical abortions.

For example, South Dakota’s governor and attorney general sent a letter Tuesday to state pharmacists to remind them of state law regarding the illegality of abortions except those necessary to save the life of the mother.

“Chemical abortions remain illegal in South Dakota,” wrote Gov. Kristi Noem and Attorney General Marty Jackley. “Under South Dakota law, pharmacies, including chain drug stores, are prohibited from procuring and dispensing abortion-inducing drugs with the intent to induce an abortion, and are subject to felony prosecution under South Dakota law, despite the recent FDA ruling. Their resources should be focused on helping mothers and their babies, both before birth and after.”

Biden’s FDA has updated labeling for mifepristone so that pharmacies (both online and brick and mortar) can now dispense the drug. These new regulations were anticipated. They merely formalized a decision made in 2021 to permanently drop the in-person requirement for the distribution of the abortion pill.

Typically, proponents say that chemical abortions—which now account for over half of the abortions performed in the US—are ““safer than Tylenol and Viagra, and 14 times safer than childbirth.” 

In fact we know from the FDA that there have been at least 28 deaths associated with the use of mifepristone since the drug was approved in the U.S. in September of 2000, along with thousands of recorded complications.  

A new study out of Canada makes clear that serious safety issues with these drugs are being ignored. “Complications and visits to emergency rooms are much higher than people have been led to believe,” wrote Dr. Randall K. O’Bannon, NRLC’s director of education & research. “These chemical abortions are consistently and measurably more dangerous than their surgical counterparts.

As Dr. O’Bannon explained

These studies, like the most recent one from Ontario, involved actual broad public populations and government records rather than reports from specially selected clients sets from some abortion network or abortion research center. 

It is telling that these studies, reflecting actual conditions on the ground and not the ideal, controlled conditions of a study, found much higher rates of adverse events and hospital visits than the ones the abortion industry has generally relied upon to make the case for looser regulations.

On January 13,  2023 Alabama Attorney General Steve Marshall led a coalition of 22 state attorneys general who sent a letter to Robert Califf, the commissioner of the Food and Drug Administration, condemning the FDA’s recent decision to abandon its longstanding restrictions which make s it easier to obtain misoprostol and mifepristone.

According to the news release that accompanying the request of the 22 state attorneys general

The letter details the serious risks associated with abortion-inducing drugs, which both state and federal laws and policies—including, until now, those of the FDA itself—have long recognized by imposing restrictions on their prescription and administration. But, in the wake of the Dobbs decision, “the FDA announced a wholesale change to [its policy aimed at mitigating the dangers of such drugs].” The FDA’s new policy is denounced by the attorneys general in no uncertain terms for “prioritizing . . . pro-abortion policy over women’s health,” which recklessly “endanger[s] the lives of women” in addition to “enthusiastically endanger[ing] the lives of unborn children.”

The Attorneys General letter concludes

“Though the FDA has abdicated its responsibility to protect women’s health, we have not. To be crystal clear, you have not negated any of our laws that forbid the remote prescription, administration, and use of abortion-inducing drugs. The health and safety of our citizens—women and children included—is of paramount concern. Nothing in the FDA’s recent changes affects how we will protect our people.”