Here’s How A Mississippi Case Could Keep Medication Abortion Legal Even In States That Have Banned It

Topline

Mississippi’s abortion trigger law took effect on Thursday and banned all abortions in the state, but an ongoing lawsuit from pharmaceutical company GenBioPro is seeking to preserve access to medication abortion despite the statewide ban—and the court’s ruling could have broader implications as other states try to outlaw abortion pills.

Mifepristone producer GenBioPro is suing to keep the abortion pill legal in Mississippi as the state … [+] bans abortion.,

Corbis via Getty Images

Key Facts

GenBioPro, which markets and sells the abortion drug mifepristone, first sued Mississippi in federal court in October 2020, arguing statewide restrictions on the medication are unlawful given the Food and Drug Administration has approved it.

Mifepristone is one of two drugs that are used as part of the regimen for medication abortion: The drug ends a pregnancy by stopping the hormones that are necessary to sustain it before misoprostol, the second medication, is used to empty the uterus.

GenBioPro argues that since the FDA has approved mifepristone for use nationwide, restricting the drug violates the Supremacy Clause of the Constitution—which says federal laws should preempt state laws—and the Commerce Clause, which blocks states from interfering with interstate commerce.

If states are allowed to each make up their own regulations for mifepristone, GenBioPro argues, it would lead to an “unworkable patchwork” of state policies that would “effectively eviscerate the mission of the FDA.”

GenBioPro’s attorneys argued after the U.S. Supreme Court overturned Roe v. Wade that Mississippi’s trigger law taking effect—which bans all abortions in the state, including medication abortion—actually “strengthen[s]

” the company’s legal argument by “creating a that-much-more direct and glaring conflict” with the FDA’s regulations.

Mississippi Attorney General Lynn Fitch said in federal district court the Supreme Court’s ruling helps the state’s argument that the case should be dismissed, however, given that the decision gave states the right to regulate and ban abortion.

Crucial Quote

In a letter to the judge in the Mississippi case after the Supreme Court’s ruling, GenBioPro’s attorneys pointed to comments U.S. Attorney General Merrick Garland made after the decision as further justification for their case. “The FDA has approved the use of the medication mifepristone,” Garland said in a statement. “States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”

Chief Critic

Mississippi argued in a court brief after Roe was overturned that the state’s trigger law doesn’t violate the FDA approval, because the state is not making any claims that mifepristone is not safe or effective, as Garland said would be unlawful. “Under the trigger law, the State is not regulating as to whether mifepristone is safe,” Fitch wrote. “Instead, the trigger law imposes the conditions upon which an abortion may be performed at all.”

What To Watch For

U.S. District Judge Henry T. Wingate now has to rule on whether to dismiss the case or allow it to move forward. It’s unclear when that ruling will come out: Wingate said Friday that he had planned to issue his ruling this week, but GenBioPro is asking him to wait until it can amend its initial lawsuit to include Missippi’s trigger law and issue a decision based on that. Wingate has not yet ruled on whether he’ll grant that request, which would likely slow down when he’ll issue his order.

What We Don’t Know

Whether other states will have bans on medication abortion challenged, which could be easier to argue in court if GenBioPro’s Mississippi case succeeds. GenBioPro attorney Ken Parsigian told Politico the company intends to challenge other states’ restrictions or bans on medication abortion, and Health Secretary Xavier Becerra has also suggested the federal government could bring legal actions against states that outlaw the pills. Beyond states with blanket abortion bans that would include medication abortion, Texas and Indiana also have specific bans on the drugs after a certain point in the pregnancy, and 33 states have some sort of restriction on how abortion pills can be prescribed and dispensed, as compiled by the pro-abortion rights Guttmacher Institute. More states are expected to enact bans that specifically target medication abortion, and lawmakers in such states as Alabama, Arizona, Iowa, South Dakota, Illinois, Washington and Wyoming have already introduced legislation to do that so far this year.

Key Background

The Supreme Court overturned Roe v. Wade on June 24, giving states license to outlaw abortion and spurring a wave of state-level bans on the procedure. Medication abortion has emerged as the primary way to provide safe access to abortion in lieu of federal protections, given that abortion pills can be sent through the mail from other states or overseas to people in states where abortion has been banned—though the legality of that is still being debated—or people could travel to states that allow medication abortion and get prescriptions for the pills via telehealth. The medication-based method was popular to begin with, accounting for 54% of all U.S. abortions in 2020, according to the Guttmacher Institute. The FDA brodened access to abortion pills in December by making pandemic-era rules permanent that allowed the medications to be distributed by mail—though 19 states have bans on that practice, which could still be challenged in court.

Tangent

Legal debates about state versus federal jurisdiction over medication abortion could also affect other drugs that have been caught up in the Supreme Court’s ruling. For example, in the wake of the Roe decision, some Americans have reported losing access to methotrexate, a medication used to treat autoimmune disorders like lupus and rheumatoid arthritis that can also be used to induce miscarriages. Any court rulings that allow bans on medication abortions could also potentially apply to those drugs. A ruling that allows states to ban mifepristone could also clear the way for states to restrict other FDA-approved drugs that are more controversial but totally unrelated to abortion—such as opioids or HIV vaccines—Washington University in St. Louis Professor Rachel Sachs told the Washington Post.