Of Course the States May Prohibit Abortion Drugs

By Kevin D. Williamson

Friday, July 08, 2022

 

President Biden and his fellow Democrats are taking steps to mandate that FDA-approved abortion drugs (properly understood as poisons rather than medicine, but, never mind that for now) remain available in states that prohibit abortion.

 

I don’t see why that should be the case.

 

The Dobbs decision makes clear that the states have the power to prohibit abortion per se — then states are not merely empowered to regulate the means by which unborn children are put to death.

 

But don’t federal rules trump state laws?

 

Not always, no.

 

For example, Americans enjoy a constitutionally protected right to keep and bear arms, enshrined explicitly in the Bill of Rights, but there are firearms that are approved for sale by federal regulators that are prohibited in certain states — some firearms that can be sold in Texas and Utah cannot be sold in California or New York. If the combination of the Second Amendment with the blessing of the ATF does not impose a uniform firearms standard on the states where there is a legitimate constitutional right concerned, why should FDA approval impose a uniform abortion standard on the states where there is no such constitutional right involved?

 

Democrats should remember that Republicans are going to be in power again, probably soon, meaning that their federal mandate for access to abortion drugs sets the precedent for a federal prohibition on such drugs the day after tomorrow.

 

That there should be some variation among the states seems right and legitimate to me. The rights protected by the First Amendment are fundamental, but we have some variation among the states in the regulation of activities related to those rights: For example, the rules for getting a parade permit in New York City are not the same as the rules for getting a parade permit in Moab, Utah. Newspaper operators in Philadelphia face different regulatory requirements than do newspaper operators in rural Colorado. On one side of the Florida-Georgia line, there is a criminal defamation law, and on the other side, there isn’t. (As someone once told that mediocre tuna: Sorry, Charlie.) I think even the most committed Second Amendment advocates recognize that there are some regulations that do not improperly burden the right (such as the prohibition of sales to felons and age requirements) and, as a matter of federalism, there isn’t any reason that these should not vary some from state to state.

 

Thanks to the Supreme Court, New York is now prohibited from using arbitrary and subjective standards in its gun-carry permitting regime, but that does not mean that New York must adopt precisely the same rule as Vermont. (You know: Wild and crazy, blood-drenched Vermont, where there never has been much regulation at all of firearms carry.) We should make room for the genuine diversity among American communities.

 

And our progressive friends accept this when it suits them — consider California’s fight to continue enforcing emissions standards stricter than those set by the federal government.

 

I am not in the business of offering free political advice to the butchers’ guild, but our pro-abortion friends should think twice about the kind of legal fights that they are looking to pick, given that they are on a losing streak that looks likely to continue.

 

It is not exactly unprecedented for the United States to have drugs that are legal in one state but prohibited in another. The same holds true for guns, automobiles, and some other products. There is no reason to treat federal approval of a product as a mandate preempting state laws. But, if that is going to be our standard, then California’s gun laws and emissions rules are going to have to go.