Leongini and Golden Quoted on Potential Effects of Dobbs v. Jackson on Contraceptive Access

Emily noted that the final regulatory effect of Dobbs remains unknown.

“There’s just so many unanswered questions about what are states going to do? How are they going to respond? And we’ve seen states take a wide variety of approaches related to abortion access,” she said. “I think the kind of logical next step is, well, what might they do to either limit or expand access to contraception? Particularly in light of Justice Thomas’s concurring opinion, can it point them into sources of political pressure and election-year politics – just the politics of it all?”

One concern is how political pressure could affect the US Food and Drug Administration’s (FDA) review of a newly submitted drug application for a daily oral contraceptive.

Shoshana said, “That’s kind of the great unknown, that there’s nothing that should technically impact FDA approval, or nothing from data that flows out of Dobbs that should impact whether or not FDA approves [over-the-counter] birth control. But if politics comes into play, that approval can nonetheless be impacted.”

However, even with FDA approval, some states could attempt to restrict sales of oral contraceptives.

Emily said, “FDA has the primary responsibility for determining whether a drug is safe and effective and, determining that a drug is safe and effective, may be lawfully sold in interstate commerce. But states have a police power and the ability to regulate the practice of medicine and the practice of pharmacy.”

She noted that states could find ways to restrict access to drugs, especially in the reproductive health space, by regulating the practice of medicine as opposed to doing anything that might be deemed as interfering with FDA authorities.

If states do legislate and restrict reproductive health care access, litigation from drug manufacturers, federal agencies, or consumers is possible.

“It remains to be seen how that will all shake out in the court,” Emily said. “We’ve seen certain restrictions like that, where people choose to regulate the practice of medicine to sort of circumvent an issue of an accusation of interfering with FDA authority.”

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