A pair of lawsuits was filed last week challenging restrictions on access to abortion pills in two states, a development that opens a new front in the highly politicized battle over the medicine. One suit was filed by an OB-GYN in North Carolina, and the other was filed in West Virginia by a company that makes a generic version of the pill. What both lawsuits have in common is the argument that the state laws are unconstitutional because they restrict access to the pill beyond what was designated by the Food and Drug Administration. We spoke with Carl Tobias, a law professor at the University of Richmond and former legal consultant to the FDA, about the legal issues raised in the lawsuits and why he thinks the litigation is likely to succeed. This is an edited version of our conversation.
What exactly is the legal issue here?
It’s called preemption. We have a federal republic and, basically, preemption involves the notion that the federal government is supreme when it acts in certain areas and in certain ways. The FDA is one of the most important agencies for establishing this idea, because of the complexity of its regulatory process and the products it regulates.
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