AG Merrick Garland Locates Spine, Says States Can’t Ban FDA-Approved Abortion Pills

As abortion rights advocates wondered for months what the Biden administration planned to do about the impending fall of Roe v. Wade, officials said they would release their plans when it happened. Well, it happened on Friday and now we’re finally getting some information.

In a press conference shortly after the ruling came down, President Joe Biden said that the current Congress doesn’t have the votes to codify Roe into law and encouraged people to—you guessed it—vote, but noted that he can do other things in the meantime.

Biden said: “My administration will also protect a woman’s access to medications that are approved by the Food and Drug Administration—the FDA—like contraception, which is essential, preventive healthcare, and mifepristone, which was FDA-approved 20 years ago to safely end early pregnancies and is commonly used to treat miscarriages.” He added, “Today I’m directing the Department of Health and Human Services to take steps to ensure these critical medications are available to the fullest extent possible.”

Shortly thereafter, Attorney General (and one-time Supreme Court nominee) Merrick Garland—a typically cautious and mild-mannered man—released a statement nudging the FDA to sue states that try to claim abortion pills are now banned, saying in part:

Today’s decision does not eliminate the ability of states to keep abortion legal within their borders…[The Department of Justice stands] ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care. In particular, the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.

This kind of action from the FDA would be based on a legal principle called federal preemption, which stipulates that state law can’t override federal law. (This comes from the Constitution’s Supremacy Clause.) If the FDA has approved a drug like mifepristone, the theory goes, states can’t ban it. Law professors and journalists have been highlighting this strategy for months now, and the generic manufacturer of mifepristone is currently suing Mississippi over the state’s abortion pill restrictions.

To be crystal clear: Abortion pills are not a solution to abortion bans. They’re only FDA-approved for the first 10 weeks of pregnancy, and many people need abortions further along in pregnancy (or just prefer an in-clinic procedure for their early abortion). The Biden administration needs to take much more action, including exploring leasing federal land to abortion providers in states with bans. But for now, we will take the tiniest win in the form of Garland coming out of the gates with something.