Both sides of the abortion debate are preparing for a post-Roe v. Wade world. Just this past week, red states like Kentucky, Oklahoma and Florida have rushed to severely restrict access to abortion. This year alone no fewer than 30 states have made moves to ban or significantly limit abortions. The writing is on the wall, the ceiling and the floor: The U.S. Supreme Court is almost certain to find that there is no constitutionally protected right to abortion.
In States where abortion is illegal, the abortion pill may be an option
A recent change by the Federal Drug Administration allows women to obtain a prescription for abortion pills through a telehealth appointment.
But this doesn’t necessarily mean women in states that outlaw or severely restrict abortion, at least those who cannot travel to another state, will be left without any access to abortion.
A recent change by the Federal Drug Administration allows women to obtain a prescription for abortion pills through a telehealth appointment as long as the women work with a certified provider and certified pharmacy. This month, the FDA is working on the certification rules for pharmacies that dispense abortion pills, which it authorizes for use up to 10 weeks into a pregnancy.
The critical question is whether women can use telehealth appointments to obtain abortion pills in states that outlaw or severely regulate medication abortion or ban abortion before 10 weeks of pregnancy.
States are gearing up for a face off with the federal government. The conflict here comes down to states trying to prohibit something (the prescribing, sending and use of abortion pills) that the federal government allows. While state law generally governs the licensing of physicians and abortion restrictions, federal law addresses the use of most medications. Therefore, when doctors conduct telehealth visits, the applicable law is where the patient, not the doctor, is. So states that restrict the use of abortion pills could arguably punish out-of-state doctors who prescribe those pills. Half a dozen states already banned the mailing of abortion pills to residents last year. Many more states are now following suit, with their own proposed bans and restrictions.
It’s a classic legal showdown with huge implications and unanswered questions. A cardinal rule of constitutional law is that when there is a conflict between a valid federal law or rules and a valid state law or policy, the federal law wins. So the first question to determine is whether the federal law or rules are constitutional. Here, the answer is yes. Congress has power over interstate commerce, and the regulation of drugs falls within that category. Here Congress, along with the FDA, has arguably occupied the area of drug regulation. The next question is whether the state law is valid. And here again, the answer is yes (at least after the Supreme Court overturns Roe). States have broad police powers to enact their own criminal codes, with a caveat. The caveat is that state laws cannot conflict with, or frustrate the purpose of, a federal law or rule. Half a dozen states already banned the mailing of abortion pills to residents last year. Many more states are now following suit. The final question is whether the federal and state laws actually conflict. A state law that bans the use of a drug that is permitted on the federal level could obviously present a conflict or interference. For all of you playing constitutional law bingo at home, if you have a box marked “Supremacy Clause,” please check that off. We have some case precedent telling us how this conflict may play out. Back in 2014, a federal district court granted a preliminary injunction against Massachusetts’ attempt to place more severe restrictions on an opioid than the FDA recommended. The court correctly ruled that under the Supremacy Clause the state order was preempted, as it acted as an obstacle to the federal government’s goal. But even given the Supremacy Clause, it’s not certain that a court will strike down state laws that bar or restrict the use and mailing of abortion pills. Red states will no doubt attempt to fine or prosecute out-of-state physicians who provide telehealth appointments and prescribe abortion pills in violation of that state’s laws. Those states are also likely to go after pharmacies that mail those pills to states that have bans on the delivery of abortion pills. States will claim they have authority to regulate criminal conduct within their borders and to regulate physicians who practice, even virtually, within their states. Abortion rights advocates and abortion pill providers will challenge those state laws by pointing to the Supremacy Clause and arguing that the federal rules governing the use of abortion pills preempt the state laws. Abortion rights advocates must aggressively push their legal case. The law is on their side. But let’s take this out of the legal arena for just a moment. We know what happens when states ban abortions. Abortions do not completely stop. Instead, they get more dangerous. And even more specifically, we know what is likely to happen if women are prohibited from getting legal prescriptions for abortion pills. They will get those pills from out of state friends or a black market. Roe is about to be executed. A woman’s ability to obtain abortion pills should not, and does not, need to be.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
