STAT News | June 24, 2022
The Biden administration could make the case that the Food and Drug Administration’s existing ruling on contraception as safe and legal medication preempts any state restrictions. “Under the doctrine of preemption, federal law displaces conflicting state laws on matters that fall within federal authority, such as products in interstate commerce,” Rebecca Reingold, associate director of the Health and Human Rights Initiative at Georgetown University’s O’Neill Institute, wrote in an email to STAT. “However, as this would be a largely novel legal strategy, it is likely to face legal challenges, and it is unclear how exactly it would play out in the courts.” Under this strategy, the Department of Justice could call on courts to intervene on states that tried to limit access to contraception — and the same approach could conceivably be used to challenge states that block the use of FDA-approved abortion medication. But it’s uncertain whether this method would hold up. Future presidents could also use the same process to reverse this policy, added Reingold.