California’s new law protecting in-state doctors and pharmacists who prescribe and provide the abortion pill to out-of-state patients could be upended by the Supreme Court if the justices choose to review the Food and Drug Administration’s approval of mifepristone.
A ruling from the justices undoing the FDA approval or rolling back moves by the Biden administration to make the pill available through the mail would strike a blow to Gov. Gavin Newsom’s new law to shield providers in his state trying to provide abortions beyond California’s borders.
“Federal law preempts state law. If the Supreme Court holds that federal law prohibits shipping these pills through the mail, the state law would have no effect,” said Josh Blackman, a professor at South Texas College of Law.
However, if California’s law is able to remain on the books, it would prevent state courts from sending information about their residents and doctors to other states that may have strict laws governing abortion, such as Texas, which has outlawed the procedure except in instances to save the life of the mother, he said.
“If the Supreme Court does not go down that route, the California law could prevent California courts from complying with subpoenas and other requests from Texas,” Mr. Blackman said.
The justices could soon issue a decision on whether the court will review a ruling this term from the 5th U.S. Circuit Court of Appeals, which said the abortion pill — specifically mifepristone — couldn’t be prescribed past seven weeks of pregnancy and banned its distribution through the mail.
The Justice Department appealed to the Supreme Court after the lower courts restricted the use of mifepristone. The high court stayed the appellate court order as it mulls the issue, so the pill remains available during the appeals process.
A three-judge 5th Circuit panel had restricted its use, saying it could not be distributed via mail, which the federal government had attempted to do for use with telemedicine. The panel also said it couldn’t be used for a longer period of time, 10 weeks, which the feds had advocated for.
A U.S. District Court in Texas had gone further than the 5th Circuit, saying the drug should not have been authorized by the FDA decades ago. It effectively took the drug off the market.
The last time the justices took up the issue of abortion, they overturned Roe v. Wade, the landmark 1973 ruling that legalized the procedure nationwide. The ruling sent the issue back to the state legislatures.
Since then, conservative-led states have moved to restrict or ban the procedure, while liberal-run states — like California — have tried to make abortion more easily available, even to nonresidents.
Massachusetts and New York have laws like California’s, aiming to shield residents and medical providers from legal charges out of state for having been involved in receiving or providing an abortion, according to The Associated Press.
California’s law was signed last month by Mr. Newsom, but Erwin Chemerinsky, a law professor at the University of California, Berkeley, says it is likely to face legal scrutiny.
The law shields abortion providers in California who treat out-of-state patients and forbids cooperation with out-of-state investigations into the mailing of the abortion pill across state lines.
“There are difficult constitutional questions. California can regulate what its doctors can and can’t do. But so can other states. How much California can protect its doctors who violate laws in other states raises unresolved constitutional questions. I think the California law is constitutional, but it is sure to be litigated,” Mr. Chemerinsky said.
Steven Schwinn, a law professor at the University of Illinois, Chicago, said it is a new area of law and the use of shield laws in the realm of abortion, state by state, remains a new area of jurisprudence with no clear precedent.
“We’ve seen some cases filed against state restrictions on mifepristone providers, including out-of-state providers, but just a few court rulings. It’s still way too early to tell what the courts as a whole will do in these cases. And it’s even less certain in the area of shield laws, where we have even fewer signals from the courts,” Mr. Schwinn said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.