(LifeSiteNews) — The Biden administration has pledged to use federal agencies, including the Food and Drug Administration (FDA), to make abortion drugs available in all 50 states, even though the Supreme Court said that abortion is a state issue. The House of Representatives took a step in that direction last year with House Resolution 1434 purporting to “reaffirm” the FDA’s authority to force pro-life states to allow chemical abortions.
This is a very big issue when more than half of all abortions in America are done with abortion pills.
But can the FDA legally do this?
It is questionable whether the FDA has the necessary authority from Congress to force states to allow abortion drugs. Congress does not have the votes to do it itself, and using the FDA to do it may be considered an illegal administrative agency “workaround,” just like the government’s illegal OSHA COVID vaccine mandate that was rejected by the Supreme Court last year.
In fact, the FDA’s original approval process for the abortion drug is itself in question. According to a federal court lawsuit in Texas, the FDA illegally approved the abortion drug in 2000 using an expedited process that was only meant for drugs used to treat “illness.” Pregnancy is no “illness.” According to the lawsuit, the FDA also ignored the potential impact of abortion drugs on the developing bodies of adolescent girls and evidence that they cause even more complications than surgical abortions.
Practical issues
Beyond the legal issues, there are significant medical problems with abortion pills, especially in states that outlaw surgical abortions. Studies show that more than 1% of all chemical abortions fail to kill the baby, necessitating a backup surgical abortion to finish the job. What happens when those backup surgical abortions are illegal?
Take the state of Texas as an example. Even if the FDA could force Texas to allow abortion pills, more than 1% of those attempted chemical abortions would fail, leaving a live pregnancy. Would those women leave the state midway during the abortion process to get a surgical abortion? What if those babies are born with birth defects from the failed abortion? Some of the abortionists will probably get sued for malpractice, and word might even get around that the pills do not always work.
And even if the FDA can keep states from banning all chemical abortions, there are plenty of other possible state restrictions consistent with the state’s regulatory authority over the practice of medicine. Examples include laws requiring informed consent, laws requiring an abortionist to be physically present when the abortion drug is administered; laws requiring the abortionist to have admitting privileges at a local hospital to deal with the medical complications, and laws banning the mailing of abortion drugs.
And what about the FDA’s legal duty to promote drug safety? Statistics show that almost 8% of all chemical abortions involve complications, roughly 4 times the risk of surgical abortion, affecting as many as 1 in 5 women. A 2020 FDA report on “adverse events,” showed evidence of at least 20 deaths, 529 life threatening events, and nearly 2,000 severe events, including emergency hysterectomies and ruptured ectopic pregnancies. The FDA even admitted those numbers were severely under-reported.
Abortion pills sometimes leave dead baby tissue in the woman’s body, risking infection and hemorrhage, often resulting in the need for surgery. Many women with failed abortions go directly to the emergency room, often requiring immediate surgery and sometimes hospitalization for blood transfusion or IV antibiotics. Studies have shown that one-third of women after chemical abortions are likely to suffer severe emotional trauma, and the abortion pills can be used in many cases to enable sexual abuse and trafficking.
READ: Study finds 6 in 10 women who had chemical abortions wanted help or emotional support after
Legal precedents
The abortion industry argues that state restrictions against abortion drugs would frustrate the FDA’s efforts to promote public health (as they see it) through a nationally uniform drug market. But the Supreme Court’s decision in the Dobbs case, overruling Roe v. Wade, said that future abortion laws, including chemical abortions, should be up to the states, not the federal government.
And even if the federal government has legal jurisdiction, the government cannot act through a federal agency unless Congress enacts legislation delegating that power to the agency. The FDA was empowered by Congress to regulate drug safety, not to make policy or political decisions on such a major issue as abortion.
The Supreme Court last year in the case of West Virginia v. EPA blocked a series of federal regulations based on a legal principle known as the “major questions doctrine.” The Court emphasized that federal agencies need explicit authorization from Congress, not just general “implied” powers, in order to make policy decisions affecting matters of “vast economic and political significance.” This should apply to the FDA and abortion pills since the FDA was never given any express authorization to promote abortion.
Nor should the FDA’s role as gatekeeper against unsafe drugs prevent states from imposing their own additional limits under their traditional police powers. The Supreme Court held in the 2009 case of Wyeth v. Levine that states can impose more stringent restrictions on drugs than the FDA requires. This should include the power to outlaw abortion drugs, whether or not the FDA thinks they are safe.
State abortion laws embody fundamental moral and political decisions by voters who need to be respected no matter what the unelected bureaucrats in a federal agency think.