Originally published at: Appeals Court Skeptical That Louisiana Can Sue FDA Over Mifepristone Being Mailed into the State - TPM – Talking Points Memo
Louisiana was met with a chilly reception Wednesday, as it pushed to make the abortion pill mifepristone less accessible nationwide. The state is arguing that the Food and Drug Administration is to blame for mifepristone being prescribed to Louisiana patients by blue state providers and entering the state through the mail, because it lifted the…
1 Like
Your articles are always clearly-written and explain the issues and arguments well. I do think it would be useful to identify the other two members of the panel. The Fifth Circuit is usually correctly identified as being very conservative. But, depending on what panel is drawn, that’s not always the case
5 Likes
I have two problems with Louisiana, or any other state, trying to regulate the prescription of mifepristone from out of state or the shipping of it into that state. The first is rather abstract - it’s that the state of Louisiana is asserting that a drug repeatedly found to be safe by the Federal Government and that is commonly prescribed in much of the nation, is not safe and violates state law. It has no such authority to rule on the drug’s safety, nor is such an assertion based on any kind of science; it’s based on religious and political opinions. For all intents and purposes, they can be regarded as practicing medicine without a license.
The second problem is more likely to be attractive to courts not eager to rubber-stamp the Louisiana law. And that is, Louisiana is attempting to regulate interstate commerce, which Constitutionally it may not do. Only Congress has the power to regulate interstate commerce.
Also, Louisiana argues that shield laws and allowing mifepristone to be shipped into the state violates the Constitution’s provision that each state will honor every other state’s laws. But the very existence of such a Louisiana law itself directly violates other states’ laws. Frankly, their argument cuts both ways, regardless of what they might wish. The same dichotomy results when states that ban abortion seek to punish out-of-state providers who perform legal abortions in their facility on that state’s residents, or even to punish the women receiving the abortions themselves - their very arguments can be turned back upon themselves.
Ultimately, the easy way out for the courts is to focus on interstate commerce, hoping to avoid being drawn into an ideological morass. It’s the coward’s way out, but is also the way most likely to succeed in the long run.
2 Likes