Jun 24, 2022 - Politics & Policy

AG Garland: States can't ban FDA-approved abortion pills on safety grounds

Attorney General Merrick Garland speaking in Washington, D.C., on June 13.
Attorney General Merrick Garland speaking in Washington, D.C., on June 13. Photo: Anna Moneymaker/Getty Images

Attorney General Merrick Garland said in a statement Friday, in the wake of the Supreme Court's decision to overturn Roe v. Wade, that states cannot ban mifepristone, a medication that is used to bring about an abortion, based on disagreement with the federal government on its safety and efficacy.

Why it matters: With Roe overturned, prescribed drugs that terminate pregnancies are likely to become the next major contention between abortion rights activists and opponents of abortion rights.

How it works: Mifepristone and misoprostol have been approved by the Food and Drug Administration for use in the first 10 weeks of pregnancy.

  • The agency in December lifted long-standing restrictions on mifepristone, allowing doctors to prescribe the medication online and send them to patients by mail.
  • Misoprostol was available with a prescription before the FDA's decision.

Despite the changes, many states have moved to make it illegal for doctors to mail the medications.

  • For example, Louisiana Gov. John Bel Edwards (D) signed a law in June making it illegal for anyone to mail abortion pills, punishable by up to five years in prison and a $50,000 fine.

What they're saying: "The Department strongly supports efforts by Congress to codify Americans’ reproductive rights, which it retains the authority to do. We also support other legislative efforts to ensure access to comprehensive reproductive services," Garland said in the statement Friday.

  • "And we stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care," he added.
  • "In particular, the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy."

Yes, but: It is far from settled law as to whether states can ban the pills, and the issue will likely have to be litigated in the courts, though there's really no clear precedent, according to the Washington Post.

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