Two Senate Democrats hope to protect access to medical abortion by codifying the Food and Drug Administration’s authority over reproductive health care products, as many red states consider usurping that authority so they can ban drugs used for abortions and miscarriages.
Sens. Cory Booker (DN.J.) and Tina Smith (D-Minn.) plan to introduce the Protecting National Access to Reproductive Care Act Tuesday morning. The bill, shared exclusively with HuffPost, confirms that the FDA’s authority overrides state law regarding FDA-approved drugs, including those used for medical abortions: mifepristone and misoprostol. The language in the legislation refers to the Supremacy Clause in the US Constitution, which prohibits states from interfering with the federal government’s power to regulate drugs.
The National Access to Reproductive Care Protection Act gives the Justice Department the power to use injunctive relief against states and state officials who try to ban or limit access to any reproductive health care products, including medication abortion. The bill includes $20 million for the Department of Justice to enforce this authority. Creates a private cause of action for individuals and doctors to sue in court and for injunctive relief.
Essentially, if a state tries to limit the use or access to abortion drugs, this bill says that the FDA’s preemptive authority overrides the state’s restriction of abortion and gives the DOJ the power to go after anti-abortion governors, the state attorneys general and other states. officials enforcing such restrictions.
If passed, the Justice Department would have a lot of work to do, given that more than a dozen states have already banned or severely restricted abortion care since June 24, when the U.S. Supreme Court overturned Roe v. Wade, the 1973 federal protection of abortion rights. Even before the Roe fell, 19 states had banned the prescription of abortion drugs by mail or through virtual telehealth visits, and more than 100 meters they were introduced in red states that specifically attack access to medication abortion.
“We know that the Dobbs decision has emboldened Republicans in state legislatures to step up their efforts to strip people of their medical freedoms and bodily autonomy,” Booker told HuffPost.
“Republican lawmakers have already begun introducing bills to completely ban medication abortion, forcing their extreme, science-free views and agenda on Americans,” he added. “That’s why I’m working with Senator Smith on this urgently needed bill to reaffirm the FDA’s long-standing preemptive authority over reproductive health products and send a strong message that the federal government will enforce that authority.”
It is highly unlikely that Booker and Smith’s bill will pass the Senate, given that Democrats simply do not have the numbers to overcome filibuster rules to advance abortion rights legislation.
The FDA first approved medication abortion in 2000 for miscarriage and abortion care up to 10 weeks of pregnancy. Although the drug is highly regulated, medication abortion is the most common method of abortion in the country, with approx. 60% of all abortions in the US When used together, mifepristone and misoprostol are more than 95% effective and it is safer than Tylenol.
The day before Roe was overturned, Smith was introduced The Abortion Medication Access Protection Act, which aims to codify current FDA guidelines for abortion drugs in many blue states that continue to provide care in a post- Roe world. The bill would ensure that people could still order medical abortion pills through telemedicine visits and from mail-order pharmacies in those states.
The National Reproductive Care Access Protection Act and the Smith Medication Abortion Access Protection Act would protect medication abortion in different ways, working together to continue access to critical health care.
While no legislation is likely to pass the Senate, Smith told HuffPost in June when she introduced her first bill that these bills are important whether they become law or not.
“We don’t have 60 votes in the United States Senate to advance legislation to protect abortion rights and fundamental freedoms,” Smith told HuffPost in June.
“But that doesn’t mean it’s not important to introduce legislation, talk about the need and use it as a way to communicate widely about what’s happening in this country. And also to mobilize support and ultimately pass these bills when we have the votes to pass them.”