Two Senate Democrats are hoping to protect access to medication abortion by codifying the Food and Drug Administration’s authority over reproductive health care products as several red states look into usurping that power so they can ban drugs used for abortion and miscarriage.
Sens. Cory Booker (D-N.J.) and Tina Smith (D-Minn.) plan to introduce the Protecting National Access to Reproductive Care Act on Tuesday morning. The bill, shared exclusively with HuffPost, affirms that the FDA’s authority supersedes state law when it comes to FDA-approved drugs, including those used for medication abortions: mifepristone and misoprostol. The language in the legislation points to the Supremacy Clause in the U.S. Constitution, which prohibits states from interfering with the federal government’s power to regulate drugs.
The Protecting National Access to Reproductive Care Act gives the Department of Justice the power to use injunctive relief against states and state officials that try to ban or restrict access to any reproductive health care products, including medication abortion. The bill includes $20 million for the DOJ to enforce that authority. It creates a private cause of action for individuals and physicians to sue in court for injunctive relief as well.
Essentially, if a state tries to restrict the use of or access to medication abortion drugs, this bill says the FDA’s preemptive authority trumps the state’s abortion restriction and gives the DOJ the power to go after anti-abortion governors, state attorneys general and other state officials implementing 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 decision that afforded federal abortion rights protection. Even before Roe fell, 19 states had banned prescribing medication abortion via mail or by virtual telehealth visits, and more than 100 measures were introduced in red states specifically attacking access to medication abortion.
“We know that the Dobbs decision has emboldened Republicans in state legislatures to ramp up their efforts to strip people of their medical freedoms and bodily autonomy,” Booker told HuffPost.
“Republican lawmakers have already begun to introduce bills to ban medication abortion entirely, imposing their extreme views, with no scientific basis, and agenda…
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