Delia A. Deschaine, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Law360, in “Can States Legally Ban FDA-Approved Abortion Pills?” by Hannah Albarazi. (Read the full version – subscription required.)
Following is an excerpt:
As conservative state governments plow ahead with prohibitions on abortions following the U.S. Supreme Court's reversal of Roe v. Wade, courts are being pressed to decide whether states also have authority to restrict access to the U.S. Food and Drug Administration-approved abortion pill.
Some legal experts insist that states lack authority to restrict access to abortion medication — which the FDA approved back in 2000 — while others say they wouldn't be surprised if state limits on prescribing and use of the abortion pill pass legal muster. …
GenBioPro Inc. v. Dobbs …
Legal experts said GenBioPro Inc. v. Dobbs raises a number of unanswered questions.
For instance, Delia A. Deschaine, an attorney at Epstein Becker & Green PC who regularly advises pharmaceutical and biotech clients on FDA regulatory matters, told Law360 that while the supremacy clause gives Congress the authority to supersede state law, there remains a question about "whether Congress intended to do that in the realm of prescription drug regulation" when it enacted the Food, Drug and Cosmetic Act.
Deschaine said there are also compelling arguments to be made that the U.S. Constitution's dormant commerce clause — which invalidates protectionist state laws that unduly burden or discriminate against interstate commerce — would prevent individual states from banning access to, or interstate shipment of, FDA-approved drugs.
Courts called upon to resolve tensions between states' right to regulate the practice of medicine and the FDA's authority to determine which drugs may lawfully be marketed in interstate commerce almost always side with the federal government, Deschaine said.
"This is why one might argue that the law really favors a finding of preemption," Deschaine said. "But, we'll have to wait to see how the courts ultimately rule on this issue."
