Lawrence Hurley

WASHINGTON, (Reuters) – While the U.S. Supreme Court is yet to release its ruling that appears set to drastically reduce abortion rights in America, one of the next legal challenges has begun at a Mississippi court.

GenBioPro Inc in Las Vegas has filed a Federal lawsuit to challenge the restrictions on the Pill used for medication abortions.

If the Supreme Court overturns 1973 Roe V. Wade, which legalized abortion in the United States, the litigation over medication abortion will likely take center stage.

This case is also from Mississippi and concerns Mississippi’s attempt to prohibit abortions within 15 weeks.

GenBioPro offers mifepristone (one of the two medications used for medication abortion). In a 2020 lawsuit, the company claimed that Mississippi’s pill restrictions conflict with U.S. Food and Drug Administration approvals for abortions. GenBioPro, in legal terms, says that the FDA approval preempts state laws. This means federal authority overstates state actions.

There will be difficulties for the more than dozen states which plan to close off abortions if Roe gets overturned. Women are likely to still be able buy pills online and in other states.

Greer Donley is a Professor at the University of Pittsburgh School of Law and an expert in reproductive rights.

Legal experts believe GenBioPro’s lawsuit is unlikely to succeed. It targets several Mississippi regulations, such as one that requires women to use the pill only in the presence a physician. The Guttmacher Institute is a research group supporting the right to abortion. Mississippi is one 19-state state that requires women to visit their doctor to receive the medication.

An in-person meeting is not required by the FDA.

GenBioPro sued and stated that Mississippi’s restrictions had “stripped the FDA of the right balance between risk mitigation, and access to safe and efficacious medication.” It declined to comment through its lawyers.

A court filing requested the dismissal of the lawsuit by the state, stating that “there is no evidence Congress ever intended that FDA have the power to nullify the ability of states to regulate in highly sensitive and controversial areas like abortion.”

Lynn Fitch is the spokesperson for Mississippi Attorney-General Lynn Fitch. He declined to comment.

The judge has not yet made his ruling. 031d2cca-fae5-4f44-8b61-9c5e7546a55d4

(Graphic: -Telehealth restrictions for medical abortion – https://graphics.reuters.com/USA-ABORTION/PILL/gdvzyaaqopw/chart.png)

LONG ODDS

In 2000, Mifepristone was first approved by FDA for use in abortions. The pill is also called RU486, and blocks pregnancy-sustaining hormone Progesterone. Misoprostol causes uterine cramps.

GenBioPro is unique in its legal approach to FDA-approved medicines. Massachusetts tried to ban an opioid. One similar case was also filed. In 2014, a federal judge ruled that the federal approval of this drug overruled the state’s attempt to ban it.

Experts in legal analysis say that the law is unclear because Congress never explicitly stated FDA approval over state laws, as it did with medical devices. It would therefore be up to the courts to resolve this question, under what is known as “implied Preemption.”

A wide availability of medical abortion would mean that there is no restriction or banning the practice in certain states. This would prove to be devastating for anti-abortion activists who long sought out a complete ban on abortion.

Katie Glenn is a legal representative of Americans United for Life. She stated that her group wants to ban abortions that cover medical abortions, but it does not necessarily mean that the use of mifepristone for other purposes should be prohibited.

“It’s not about banning the drug. It’s about stopping abortions,” she said.

There are two reasons why attempts to overturn state restrictions may fail at the Supreme Court: the 6-3 conservative majority opposes abortion rights, and the Justices often doubt federal preemption claims.

Ilana Eisenstein of Philadelphia, an attorney who has presented cases to the justices said “The court has generally moved against preemption and has been skeptical about arguments that a law generally impedes federal interests.”

Roe would be overturned and states could also argue that they have an additional interest in stopping abortions due to moral objections.

Donley stated that “I think there’s some basis for thinking states can’t prohibit an FDA-approved medication,” but it becomes more complex in a post Roe world where a state bans the practice of abortion.