Hannah Albarazzi here sets out a road map for Remedies students looking for a term paper topic this fall. Opponents of the Dobbs decision returning the abortion rights debate back to the states confront a difficult road. One particularly difficult hurdle - rooted in the long-held doctrine that the national government is limited to "enumerated" powers and that it has no general "police power" - the power to act nationwide to protect the public health and welfare.
In my view this is one of the founding fictions. After the first thirteen states - the most influential being the slave-holding Commonwealth of Virginia - formed the "more perfect union" the national government conquered vast swaths.
The Louisiana Purchase was merely France's abandonment of its intention to conquer the Mississippi River and its 1,000 mile long swath of delta and tributaries. The United States stepped in and itself seized that land, driving the native tribes into disease, death, and submission. With the French gone `liberte, fraternite, and egalite' were as inoperative as were "all men are created equal". Slavery was deeply embedded in Louisiana, a state still plagued by the legacy of slavery, and it expanded north to Missouri in the notorious 1840 "compromise" that divided Massachusetts giving Maine two Senators and made Missouri a slave state.
Then came the conquest of Mexico - the seizure in 1846-1848 of over half of its territory - everything north of the 2,000 mile long Rio Grande, plus New Mexico, Arizona, and California. Despite the fact that the national government achieved this conquest U.S. legal doctrine still embraces the fiction that the states formed the union. This fiction of state sovereignty and the national government's limitation to "enumerated powers" makes the right wing's legal argument strong. As Hannah Albarazi writes:
"No federal policy mandates that chemical abortions be allowed nationwide for up to 10 weeks of pregnancy; in fact, Congress specifically declined to enact such a law following the Dobbs decision," Denise Harle, senior counsel and director of the Alliance Defending Freedom's Center for Life, told Law360.
Harle, who has spent much of the last year representing anti-abortion plaintiffs and defendants, said these federal cases "involve absurd arguments that FDA approval of chemical abortion drugs means that states can't have laws governing the use of those drugs."
It is difficult to see the 6-3 right-wing majority of the Supreme Curt rejecting that argument.
Another obstacle to state power - beyond the likely limitations on the lawful use of Mifepristone - is the Comstock Act (1873), a measure which Adrian Vermeule and his frequent collaborator Conor Casey embrace as a barrier to the use of the U.S. Mail.
- George Conk 6/25/23
By Hannah Albarazi
Law360 (June 22, 2023, 6:51 PM EDT) -- The U.S. Supreme Court's elimination of the constitutional right to abortion hit like an earthquake last summer, uprooting long-standing reproductive rights, triggering state laws curbing abortion access and flooding courts with litigation. A year later, legal battles promise further shake-ups to the abortion landscape.
Since the Supreme Court overturned Roe v. Wade
with its Dobbs v. Jackson Women's Health Organization decision in June 2022, abortion-rights groups have filed lawsuits to block restrictions in nearly two dozen states. Meanwhile, anti-abortion groups have taken to the courts to erect new barriers to abortion access.
Here, Law360 highlights the biggest legal cases over reproductive rights since the Dobbs decision came down, including several that could bring the issue back up to the Supreme Court:
Abortion Pill's Fate Hangs in the Balance
Before the dust settled from the Dobbs decision, a new case took center stage in the national debate over reproductive rights: Alliance for Hippocratic Medicine et al. v. FDA et al.
In late 2022, anti-abortion groups and physicians sued the U.S. Food and Drug Administration in Texas federal court alleging the agency decades ago unlawfully approved the abortion medication mifepristone, which when taken in conjunction with the pill misoprostol is widely used to terminate early pregnancies and treat miscarriages.
But the case burst onto the national stage in April, when U.S. District Judge Matthew J. Kacsmaryk ruled that the FDA had improperly approved the medication and moved to pull its approval, marking the first time a court has struck down an FDA approval.
The FDA along with Danco Laboratories, which distributes the name-brand version of the drug, quickly appealed, and the U.S. Supreme Court in turn fully blocked the order while the case continues to play out. The Fifth Circuit heard oral arguments in the case in mid-May, but has not issued a judgment yet.
Experts say it's likely the high court will weigh in on the case again.
Rebecca B. Reingold, associate director of the O'Neill Institute for National and Global Health Law at the Georgetown University Law Center, said she thinks this case "will almost certainly reach the Supreme Court, regardless of the Fifth Circuit Court of Appeals' pending decision." And if the justices do take up the case, they "will determine how accessible mifepristone will be in the U.S. going forward," Reingold told Law360.
"It also has the potential to undermine the FDA's regulatory authority in general and set a dangerous precedent that could be relied upon by courts to contest other drug approvals in the future," she added.
Stakeholders have refused to stay on the sidelines of this case, launching their own legal challenges in an attempt to preempt future court orders restricting access to mifepristone.
For instance, just moments after Judge Kacsmaryk ruled in the mifepristone case, a Washington federal judge temporarily ordered the FDA to maintain the availability of mifepristone in 17 states and the District of Columbia, which had all filed suit.
Similarly, abortion providers in Kansas, Montana and Virginia in May sued the FDA in Virginia federal court seeking to block the agency from doing anything to hinder the availability of mifepristone. Following a preliminary injunction hearing in early June, the parties are continuing to brief the court.
GenBioPro, the generic distributor of mifepristone, likewise sued the FDA in Maryland federal court, arguing that any future court order blocking the approval of mifepristone without holding hearings and carrying out a risk assessment that would have to justify the drug's removal from the market would be unlawful.
The company also sued West Virginia in federal court, challenging its abortion bans as unlawfully restricting patients' access to mifepristone and, as a result, GenBioPro's ability to market, promote and sell its medication. West Virginia's Republican Attorney General Patrick Morrisey has vowed to defend the law, saying the U.S. Supreme Court "has made it clear that regulating abortion is a state issue." The case is ongoing after U.S. District Judge Robert C. Chambers refused to dismiss the case in May.
Health care providers are also suing the states. North Carolina physician Amy Bryant, for instance, sued the Tar Heel State in federal court for allegedly impeding her professional obligation to treat her patients based on her own best judgment.
Anti-abortion groups, however, have a different view of the debate.
"No federal policy mandates that chemical abortions be allowed nationwide for up to 10 weeks of pregnancy; in fact, Congress specifically declined to enact such a law following the Dobbs decision," Denise Harle, senior counsel and director of the Alliance Defending Freedom's Center for Life, told Law360.
Harle, who has spent much of the last year representing anti-abortion plaintiffs and defendants, said these federal cases "involve absurd arguments that FDA approval of chemical abortion drugs means that states can't have laws governing the use of those drugs."
The case challenging mifepristone's FDA approval is Alliance for Hippocratic Medicine et al. v. FDA et al., case number 23-10362, in the U.S. Circuit Court of Appeals for the Fifth Circuit.
Since the Supreme Court overturned Roe v. Wade
with its Dobbs v. Jackson Women's Health Organization decision in June 2022, abortion-rights groups have filed lawsuits to block restrictions in nearly two dozen states. Meanwhile, anti-abortion groups have taken to the courts to erect new barriers to abortion access.Here, Law360 highlights the biggest legal cases over reproductive rights since the Dobbs decision came down, including several that could bring the issue back up to the Supreme Court:
Abortion Pill's Fate Hangs in the Balance
Before the dust settled from the Dobbs decision, a new case took center stage in the national debate over reproductive rights: Alliance for Hippocratic Medicine et al. v. FDA et al.
In late 2022, anti-abortion groups and physicians sued the U.S. Food and Drug Administration in Texas federal court alleging the agency decades ago unlawfully approved the abortion medication mifepristone, which when taken in conjunction with the pill misoprostol is widely used to terminate early pregnancies and treat miscarriages.
But the case burst onto the national stage in April, when U.S. District Judge Matthew J. Kacsmaryk ruled that the FDA had improperly approved the medication and moved to pull its approval, marking the first time a court has struck down an FDA approval.
The FDA along with Danco Laboratories, which distributes the name-brand version of the drug, quickly appealed, and the U.S. Supreme Court in turn fully blocked the order while the case continues to play out. The Fifth Circuit heard oral arguments in the case in mid-May, but has not issued a judgment yet.
Experts say it's likely the high court will weigh in on the case again.
Rebecca B. Reingold, associate director of the O'Neill Institute for National and Global Health Law at the Georgetown University Law Center, said she thinks this case "will almost certainly reach the Supreme Court, regardless of the Fifth Circuit Court of Appeals' pending decision." And if the justices do take up the case, they "will determine how accessible mifepristone will be in the U.S. going forward," Reingold told Law360.
"It also has the potential to undermine the FDA's regulatory authority in general and set a dangerous precedent that could be relied upon by courts to contest other drug approvals in the future," she added.
Stakeholders have refused to stay on the sidelines of this case, launching their own legal challenges in an attempt to preempt future court orders restricting access to mifepristone.
For instance, just moments after Judge Kacsmaryk ruled in the mifepristone case, a Washington federal judge temporarily ordered the FDA to maintain the availability of mifepristone in 17 states and the District of Columbia, which had all filed suit.
Similarly, abortion providers in Kansas, Montana and Virginia in May sued the FDA in Virginia federal court seeking to block the agency from doing anything to hinder the availability of mifepristone. Following a preliminary injunction hearing in early June, the parties are continuing to brief the court.
GenBioPro, the generic distributor of mifepristone, likewise sued the FDA in Maryland federal court, arguing that any future court order blocking the approval of mifepristone without holding hearings and carrying out a risk assessment that would have to justify the drug's removal from the market would be unlawful.
The company also sued West Virginia in federal court, challenging its abortion bans as unlawfully restricting patients' access to mifepristone and, as a result, GenBioPro's ability to market, promote and sell its medication. West Virginia's Republican Attorney General Patrick Morrisey has vowed to defend the law, saying the U.S. Supreme Court "has made it clear that regulating abortion is a state issue." The case is ongoing after U.S. District Judge Robert C. Chambers refused to dismiss the case in May.
Health care providers are also suing the states. North Carolina physician Amy Bryant, for instance, sued the Tar Heel State in federal court for allegedly impeding her professional obligation to treat her patients based on her own best judgment.
Anti-abortion groups, however, have a different view of the debate.
"No federal policy mandates that chemical abortions be allowed nationwide for up to 10 weeks of pregnancy; in fact, Congress specifically declined to enact such a law following the Dobbs decision," Denise Harle, senior counsel and director of the Alliance Defending Freedom's Center for Life, told Law360.
Harle, who has spent much of the last year representing anti-abortion plaintiffs and defendants, said these federal cases "involve absurd arguments that FDA approval of chemical abortion drugs means that states can't have laws governing the use of those drugs."
The case challenging mifepristone's FDA approval is Alliance for Hippocratic Medicine et al. v. FDA et al., case number 23-10362, in the U.S. Circuit Court of Appeals for the Fifth Circuit.
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