This paper discusses the two types of implied preemption that would be raised against state bans and other restrictions of FDA-approved abortion-related prescription drugs, as well as possible express preemption in the context of OTC drugs. It examines prior preemption litigation involving affirmative state bans imposed against FDA-approved products. It also addresses implied preemption under Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472 (2013), of privately brought “stop selling” claims brought against various FDA-approved prescription drugs in the product liability context. The paper also discusses state control over medical practice in the context of off-label use of FDA-approved drugs to terminate pregnancy or to provide post-coitus contraception.

The paper concludes that these preemption arguments appear meritorious in the context of state actual or de facto bans on abortion-related drugs, at least in the context of on-label use, with state control over off-label use being a weaker case. It points out that these preemption arguments also place the FDA at greater risk of political and judicial interference with its science-based standards for approval of drugs and their intended uses.

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