Aggravating Inequalities: State Regulation of Abortion and Contraception

Abstract

Each year in the United States, pervasive inequities in health-care access and health outcomes contribute to tens of thousands of excess deaths among communities of color and other historically marginalized and vulnerable populations. Tragically, even that number may be a conservative estimate. These inequities transpire from structural barriers rooted deeply in racism, sexism, ableism, heterosexism, and other forms of discrimination. Health-care federalism in the United States--the division of power between the federal and state governments in the regulation of health care--although at times beneficial, too frequently exacerbates health disparities. This Article takes up one aspect of health-care federalism--state regulation of pharmaceutical products ("pharmaceutical federalism")--and exposes how state bans and restrictions on pharmaceuticals approved by the U.S. Food and Drug Administration (FDA) contribute to disparities in health-care access and outcomes. Specifically, this Article focuses on two pharmaceuticals currently in the crosshairs of health-care federalism and in need of urgent attention: medication abortion and contraceptives.

Notwithstanding the states' long-standing role in regulating health care and the practice of medicine, the changing nature of the provision of health care--which increasingly crosses state or even international lines--raises serious and pressing questions about the logic of continuing to show strong deference to such state authority. This Article interrogates pharmaceutical federalism and considers whether federal law can, or should, preempt state bans and restrictions on FDA-approved pharmaceuticals. This question is now top of mind for lawyers, scholars, policymakers, and the public in the wake of the U.S. Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization. Its urgency cannot be understated. This Article exposes how current law, policy, and judicial precedent leave the answer to this question uncertain. Absent additional clarity, the significant harms of health-care federalism will continue unabated as states push back against federal authority and test the scope of their powers by restricting or banning certain FDA-approved pharmaceuticals. This Article proposes a legislative fix, along with other regulatory and policy changes, to combat the negative consequences of state pharmaceutical bans and restrictions.

Note:
Funding Information: None to declare.

Conflict of Interests: None to declare.

Keywords: abortion, federalism, FDA, mifepristone, misoprostol, contraception, medication abortion, health disparities, pharmaceutical regulation, progesterone

JEL Classification: I1, I14, I18, K32, K23, Z18