New Article on Regulation of Abortion and Federal/State Divide

My colleagues, Profs. Joanna Grossman and Nathan Cortez, have published an important article: "Who Regulates Abortion Now?," 110 Iowa L. Rev. 1579 (2025). Their article dispels the notion -- promulgated by the Supreme Court in its Dobbs decision and widely accepted -- that abortion regulation has been returned to the states. Not so fast, they argue, in light of the Food & Drug Administration's regulatory control of the means by which a substantial majority of abortions are now obtained: abortion drugs such as mifepristone.

The authors argue, quite convincingly, that federal regulation of abortion medications plays a substantial role in the day-to-day reality of abortion medicine and that federal law has been superior to state law in this regard:

We argue that most patients want medicine to be evidence-based (applying the best scientific and medical knowledge available at the time), ethical (adhering to the ethical standards adopted by professional societies), consistent (encouraging similar care for similarly-situated patients), and individualized (accounting for each patient’s specific needs, preferences, and circumstances). Our laws and regulations should prioritize, not frustrate, these values. We then show that federal regulation has been superior at encouraging these values, while state regulation in abortion-restrictive states undermines these values, resulting in medical care that is less evidence-based, less ethical, less consistent, and less individualized in service of “winning” deeply-contested moral and ideological debates.

The entire article is indispensable reading for anyone who wants to understand not only the ongoing abortion debate, but much more:

Just as before Dobbs, federal authorities continue to determine which drugs can be prescribed while state authorities help define the permissible scope of medical practice. However, since Dobbs, several states have tried to ban the use of a medication approved as safe and effective by federal regulators. What should we do when concurrent oversight over “medicine” by state and federal authorities clashes in this way?

In the long term, these disputes are about more than just preemption; they are about how we regulate medicine in a world of telehealth, remote prescribing, and health care delivery models that increasingly blur the line between medical practice (regulated by states) and medical products (regulated at the federal level). These disputes also speak to ongoing battles over the permissibility of gender-affirming care, the regulation of laboratory-developed tests (“LDTs”), and other evolutions in medicine. Thus, the question “Who regulates abortion now?” is also a question of “Who regulates medicine now?”