Abortion pills are safer than Tylenol, but the FDA is keeping unnecessary barriers to access in place.
in a recent opinion, using some “smart arguments,” said Donley, like the FDA’s regulation change, it does nothing to counteract state bans.
“The Supremacy Clause of the Constitution essentially says that federal law trumps state law when the two conflict. So, the federal government says that medication abortion is safe, effective and should be permitted to be sold in the U.S. But states are banning abortion, and as part of that, banning the sale of an FDA-approved drug,” said Donley. In other words, there is an argument to be made that a state doesn’t have the power to ban an FDA-approved drug.
Given the current makeup of the federal judiciary, having a business advance this argument, rather than the federal government, may prove more successful. “If the goal is to win over some conservatives, which you would have to do for this theory to be successful, then you might think that the FDA and the DOJ are being smart trying to not get involved, because the best way to frame this case is from the perspective of a business interest,” said Donley.
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