AFTER THE SUPREME COURT’S decision to overturn Roe v. Wade, several states wasted no time in enacting laws banning abortion. Many of these laws – some without exceptions for rape or incest – went into effect the moment the Supreme Court’s conservative majority wiped away 50 years of precedent. Weeks after the decision, supporters of abortion rights are busy assessing the legal landscape for ways to keep abortion safe and available. At the same time, physicians throughout the country who provide – or provided – abortion services under the protection of Roe are now forced to decide between their commitment to their patients and the real risk of criminal prosecution.
The post-Roe legal uncertainty in which we now live will likely continue for years – with many questions left to the same conservative Supreme Court majority to answer. One of those questions is whether states can ban the use of federally approved medication to terminate pregnancy within their state lines. A federal case from Massachusetts supports the argument that the answer to that question is no and that these state bans are unconstitutional.
In March 2014, Massachusetts Gov. Deval Patrick declared a public health emergency in response to the state’s growing opioid abuse crisis. In that declaration, the governor ordered the Department of Public Health to take several actions to address the rising number of opioid-related deaths in Massachusetts. Among them, the governor directed the department to prohibit the prescribing and dispensing of Zohydro, a new powerful opioid that the Federal Drug Administration (FDA) approved against the guidance of its own scientific advisory panel.
Of particular concern to the panel, and the Patrick administration, was that the drug was crushable, which made it more susceptible to abuse by inhalation and injection. Zogenix, the manufacturer of Zohydro, sued the Patrick administration, claiming that a state government was not able to ban a drug approved by the federal government. A federal judge agreed, ruling that under the doctrine of preemption, which is based on the US Constitution’s Supremacy Clause, federal law – in this case FDA approval – preempts state law. The judge halted the state’s ban, and the drug was allowed to be prescribed in Massachusetts.
While Gov. Patrick’s decision to ban Zohydro might have lost in federal court, the ban received widespread media coverage and elevated the issue of opioid abuse and addiction in public awareness which hopefully helped to minimize the stigma for those struggling with addiction. Nearly a decade later, the governor’s failed attempt to ban a drug approved by the FDA and the victory for federal preemption in the related lawsuit have positive ripple effects for the legal case to protect abortion rights.
The case can and should be used as legal precedent to support the argument that – just as Massachusetts could not ban Zohydro because it was approved by the FDA – states cannot ban FDA-approved medications that induce abortions. The New York Times cited the Zohydro case for this proposition in a recent editorial about ways to protect abortion rights. While there are certainly many cases that can be used to support federal preemption – not to mention the language of the US Constitution itself – this Massachusetts case is clearly on point and strongly supports the legal case against any state ban of a federally approved medication. Advocates should use it and states considering such bans should think twice because of it.
Gov. Patrick displayed courage in taking on the pharmaceutical company and trying to ban an opioid that the FDA’s own scientific panel believed the market did not need. While he lost that battle, his efforts might have created the legal precedent those seeking to protect access to FDA-papproved abortion medication need – and in this uncertain post-Roe legal landscape that might make the difference.
Jamie Hoag served as deputy chief legal counsel to Gov. Deval Patrick and advised him on the 2014 emergency declaration regarding the opioid crisis.