Constitutional Law

States can’t restrict abortions outside their borders, ban abortion pills based on FDA disagreement, AG Garland says

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AG Merrick Garldn

U.S. Attorney General Merrick Garland. Photo by Win McNamee/The Associated Press.

U.S. Attorney General Merrick Garland emphasized options that are still available to women seeking abortions after the U.S. Supreme Court overturned Roe v. Wade on Friday.

In a statement Friday, Garland said the Department of Justice “strongly disagrees” with the Supreme Court’s decision overturning the right to abortion in Dobbs v. Jackson Women’s Health Organization.

Garland focused, however, on what the Supreme Court decision didn’t do.

The decision doesn’t allow states to ban reproductive services outside their borders, Garland said. Nor can states ban the abortion drug Mifepristone “based on disagreement with the FDA’s expert judgment about its safety and efficacy,” Garland said.

At least 19 states ban medication abortions provided through telehealth consultations, and some also restrict the mailing of abortion pills, according to the Washington Post. And some states have trigger laws that will likely ban the abortion pills now that Roe has been overturned.

The Washington Post and CNN indicate that state bans on abortion pills and travel for abortion could be new fronts in wars over abortion rights.

A state ban on travel for abortion is probably unconstitutional, according to a Volokh Conspiracy blog post. And the law “isn’t settled” regarding states’ ability to ban abortion pills, according to experts who spoke with the Washington Post.

Garland said “bedrock constitutional principles” protect the right to travel to other states for reproductive care. He also said that “fundamental First Amendment principles” give people the freedom to provide information and counseling about reproductive care that is available in other states.

Garland also said federal agencies “may continue to provide reproductive health services to the extent authorized by federal law.” Federal employees who provide such services should not be subject to criminal or civil liability for performing their duties, he said.

“The Justice Department will use every tool at our disposal to protect reproductive freedom,” Garland said. “And we will not waver from this department’s founding responsibility to protect the civil rights of all Americans.”

Hat tip to @hugolowell.

See also: “ABA supports reproductive choice, opposes prosecution for having an abortion, ABA president says”

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