States’ Rights vs Federal Drug Administration – A Bitter Pill

 

If every state had different laws regarding which prescription drugs were safe, which food safety standards should apply, there might be a huge drain on interstate commerce. It’s not like air quality that necessarily blows across state lines where local regions, with differing geophysical realities that might hold incoming air pollution was to protect their air, or water access rights to commonly shared waterways. Congress, invoking the Constitution’s commerce clause, has long since elected to exercise federal jurisdiction to maintain pharmaceutical standards and regulations. Likewise, the federal government has maintained control over the Postal Service since this nation was founded. These areas are specifically relegated to the federal government, literally giving the feds legal preemption over conflicting state laws.

On the other hand, the 10th Amendment to the Constitution specifically states that the federal government only has those powers delegated to it by the Constitution, and that all other powers not forbidden to the states by the Constitution are reserved to the states. The equal protection clause under the 14th Amendment was passed subsequently, and the US Supreme Court overturned Roe vs Wade in its highly controversial Dobbs vs Jackson Women’s Health on June 24th. What you are witnessing, in the stormy battles post Dobbs, has been a flurry of red state legislative activity which either instantly triggered abortion bans when Dobbs was decided or implemented far-reaching bans immediately thereafter.

Many of these statutes have created serious felonies for people offering abortions, providing abortion support or otherwise assisting pregnant women travel to blue states where abortions are still legal. Some of these statutes reach into other states, raising serious constitutional issues under the “full faith and credit” provision of the Constitution, while others address any form of pregnancy-ending treatment, including so-called morning after or other later impacting pills. As some blue states are moving such medications into an over-the-counter status, based on FDC approvals of the safety of the pills, or making them available through local prescriptions even for out-of-state buyers, abortion-banning states see red. See a perfect storm rising? David Savage, writing for the July 17th Los Angeles Times, outlines both the history and the rising controversy between the feds and many red states:

“More than 20 years ago, the Food and Drug Administration approved abortion medication as safe and effective for ending an early pregnancy. Last year, partly in response to the pandemic, the agency said the pills may be distributed by a pharmacist or sent directly to a patient’s home by courier or by mail.

“In recent years, two drugs taken in combination — mifepristone and misoprostol — became the most common form of abortion in the U.S., overtaking in-clinic procedures… But antiabortion states questioned the safety of these drugs and restricted their use, even before the right to abortion was overturned. Texas, for example, last year made it a crime to send or deliver an ‘abortion-inducing drug’ to a pregnant woman.

“The federal-versus-state dispute has set the stage for another legal battle that could shape the rights of women in about half the country. At issue is whether the federal regulations on safe drugs could override state laws and, if so, provide a legal option for women where abortion is banned… In response to the court’s ruling June 24, President Biden and Atty. Gen. Merrick Garland said they would fight to defend the FDA rules… ‘States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,’ Garland said.

“A first case testing the issue is pending in Mississippi. It is one of 19 states that required a physician to see the patient when the abortion medication was prescribed, and it said the patient must be in the ‘same room’ with the physician when taking the pills… Two years ago, lawyers for GenBioPro, the Nevada-based maker of a generic version of mifepristone, filed suit in federal court in Mississippi contending that its restrictions were extreme and pre-empted or overridden by federal law… They argued that the Constitution makes federal law supreme, and they called the rules ‘an impermissible effort by Mississippi to establish its own drug approval policy.’

“U.S. District Judge Henry Wingate had put off ruling on the GenBioPro case until the Supreme Court decided the other Mississippi case — Dobbs vs. Jackson Women’s Health — which resulted in the June 24 ruling overturning Roe… Now, Wingate’s decision in GenBioPro vs. Dobbs could be the first on whether federal drug law means that abortion pills may be legally distributed in antiabortion states.

“‘We should have a decision soon, but we will also be filing suits in other states,’ said Ken Parsigian, a Boston lawyer who represents GenBioPro. ‘Right now, we have the only suit out there, and we’d love to have the Justice Department join us.’… The state’s lawyers called for the drugmaker’s suit to be dismissed. They said the Supreme Court gave the state ‘sweeping authority’ to prohibit abortion, and that includes any ‘medicine or drug’ that would terminate a pregnancy.”

Indeed, it looks as if GenBioPro might wind up at the Supreme Court, where a rogue majority of justices have prioritized evangelical values and states’ rights over constitutional precedents. Some Dems in Congress are even suggesting that federal lands be used to set up abortion clinics even within red states. Senator Elizabeth Warren said, “They could put up tents, have trained personnel -- and be there to help people who need it.” How about in VA hospitals? Indeed, these are but a few of many issues raised by Dobbs that will dominate the judicial and legislative landscape for years.

I’m Peter Dekom, and if the political right-wing objects to big government intruding into individual rights, their hypocrisy is underlined by their continuing support to contract individual rights, enforce by big government, where such rights contradict NRA desires, evangelical values or overreaching states’ righters.