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Major legal fights loom over abortion pills, travel out of state

The overturning of Roe v. Wade after nearly 50 years is expected to trigger a new set of legal challenges for which there is little precedent. Can states ban mail-order medication used to terminate pregnancies or bar their residents from traveling elsewhere to do so? It is possible, if not probable, that one or both of these questions will eventually work its way back to the high court. As a result of the ruling in Dobbs v. Jackson Women’s Health Organization, abortions are banned or mostly banned in 13 states. The Biden administration has pledged to ensure access to abortion medication, which is used in more than half of all terminated pregnancies in the U.S. Democratic leaders and liberal activists have called on President Biden to take bolder action.

The Justice Department has activated a “reproductive rights task force” to monitor and push back on state and local efforts to further restrict abortion. Legal experts say it is unclear whether the federal government would succeed if it challenged state restrictions on abortion medication. The Food and Drug Administration approved mifepristone in 2000, finding it safe and effective to end an early pregnancy. The medication, now authorized for the first 10 weeks of pregnancy, is used with a second drug, misoprostol, to induce an abortion. At least 19 states ban the use of telehealth for medication abortion, and Republican lawmakers in more than a half-dozen states have introduced or passed legislation to ban or severely restrict abortion medication, according to the Guttmacher Institute.

In 2014, Massachusetts tried to ban an FDA-approved opioid called Zohydro. A District Court judge sided with the manufacturer and said the FDA’s approval preempted state law. Massachusetts withdrew its regulations and did not appeal, meaning other judges are not required to follow the same legal reasoning. Experts say FDA approval of drugs, including in the abortion context, “should supersede any state restrictions” The Biden administration has an “extraordinarily strong legal claim,” he said. But experts say federal preemption does not mean states are barred from dictating how — or whether — certain drugs can be used. The Justice Department has emphasized that the Supreme Court's ruling does not prevent women from traveling across state lines.