Letter to Attorney General Garland
re: leaked Dobbs draft opinion
May 10, 2022
Josh Riley
P.O. Box 6806
213 Tioga Street
Ithaca, NY 14851
Attorney General Merrick Garland
U.S. Department of Justice
950 Pennsylvania Ave. NW
Washington, DC 20530–0001
DOJ.Correspondence@usdoj.gov
Attorney General Garland,
I am alarmed by the draft decision in Dobbs v. Jackson that was leaked from the U.S. Supreme Court last week, and I am writing to encourage your Department to prepare affirmative civil litigation to protect women’s access to abortion services should that draft decision become final. I appreciate your leadership on this important matter and your commitment to equality and justice under the law.
The draft opinion in Dobbs would overturn Roe v. Wade¹, and, with it, nearly
fifty years of legal precedent protecting a woman’s autonomy over her own
reproductive health decisions. The draft opinion is stunning both in its
reasoning and its reach. Writing for a purported majority, Justice Alito’s
central premise in Dobbs is that “the constitution makes no mention of
abortion.”² That’s true, of course, but it’s also not the point. The Constitution
does mention liberty, and in fact, makes it foundational to the entire American experiment.³
And there can be little question that the constitutional concept of “liberty”
encompasses a woman’s right to decide for herself whether to get an abortion.
Not only is that principle “settled as a precedent” under Roe and Planned
Parenthood v. Casey⁴ (as Chief Justice Roberts testified during his confirmation hearing⁵), but it also was affirmed for all intents and purposes more recently in Lawrence v. Texas,⁶ where the Supreme Court explained that “liberty protects the person from unwarranted government intrusions into private places” because “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”⁷
Justice Alito’s draft opinion in Dobbs does not seriously attempt to reconcile its
proposed holding with that in Lawrence, which Justice Alito’s draft opinion
mentions (in passing) just three times (once in a footnote) in its 90+ pages.
Rather, Justice Alito’s draft opinion perversely reasons that our nation’s long
history of oppressing women justifies future oppression of women. That is not
a tenable argument, and I hope the Court rejects it.
Even if the Supreme Court overturns Roe in Dobbs, I believe there are legal
strategies available to your Department to protect women’s rights, and I
appreciate you looking into them. In particular, I believe the Department
should prepare affirmative civil litigation asking federal courts to declare
unconstitutional any state law prohibiting abortions induced by medications
approved by the U.S. Food and Drug Administration (“FDA”).
In the Food, Drug & Cosmetic Act (“FDCA”), Congress determined that making FDA-approved drugs available “promote[s] the public health.”⁸ A state law prohibiting the use of FDA-approved drugs stands in direct conflict with, or at the very least poses an impermissible obstacle to, Congress’ stated objectives in the FDCA. That is because, in Congress’ judgment, the latter advances public health by making FDA-approved drugs available to patients while the former prohibits the use of those very drugs. In such circumstances, it is apparent that the FDCA preempts state law under the Constitution’s Supremacy Clause.⁹
For example, in Zogenix Inc. v. Patrick, a federal court struck down a
Massachusetts law restricting the use of a pain management medication that
had been approved by the FDA.¹⁰ In doing so, the court explained that, although states have authority to regulate the administration of drugs by health professionals, they “may not exercise those powers in a way that is
inconsistent with federal law.”¹¹ In Zogenix, the court held that the FDA’s
approval of medications preempted the state law restricting the use of those
medications.
The same legal reasoning and conclusion apply here. Pursuant to its authority
under the FDCA, the FDA has determined that the “abortion pill”–a
combination of mifepristone and misoprostol that can terminate a pregnancy
within the first ten weeks–is safe and effective.¹² Therefore, state laws
prohibiting the use of abortion pills unconstitutionally conflict with the
FDCA–and that is so regardless of whether Roe remains good law after Dobbs.¹³ And because studies show that the abortion pill is used in about half of abortions in America today,¹⁴ affirmative litigation successfully challenging
the constitutionality of state laws banning abortion pills would have the
practical effect of significantly (though of course not completely) protecting
women’s rights to abortion regardless of the result of Dobbs.
Women’s healthcare decisions are theirs to make, not the government’s.
Congress must act swiftly to pass, and President Biden must sign, the
Women’s Health Protection Act to codify Roe in federal statutory law. In the
meantime, I encourage you to examine all legal options available to the
Department, including those set forth in this letter.
Sincerely,
Josh Riley
[1] 410 U.S. 113 (1973).
[2] – U.S. –, at 6 (draft op.).
[3] See, e.g., U.S. Const. Pmbl (to “secure the Blessings of Liberty to ourselves and our Posterity”); id. Amend. V; id. Amend. VIX §1.
[4] 505 U.S. 833 (1992).
[5] S. Hrg. 109–158 at 145.
[6] 539 U.S. 558 (2003).
[7] Id. at 562.
[8] See 21 U.S.C. § 393(b)(1).
[9] See U.S. Const., Art. IV, para. 2; Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
[10] №14–11689-RWZ, (D. Mass. Jul. 8, 2014).
[11] Id. at 7.
[12] See FDA NDA 20–687 (Sep. 28, 2000).
[13] Indeed, the draft opinion in Dobbs makes no mention of the Supremacy
Clause.
[14] See Jones, et. al, “Medication Abortion Now Accounts for More Than Half of All US Abortions,” Guttmacher Institute (Feb. 24, 2022); see also Am. Coll. of Obstetricians & Gynecologists, Practice Bulletin №225 (Oct. 2020).
