that a drug manufacturer should not have to stop selling its product in a state to comply with both federal and state laws. In a post-world, this argument could extend even further to poke holes in bans on all abortion or extreme laws like S.B. 8 by forcing states to allow medication abortions.
The blueprint for this preemption challenge has already been successful against a state’s attempt to ban, and then regulate, a new opioid more stringently than the FDA. In a 2014 case, a courtas preempted even though the state was acting with an established, evidenced-based safety interest.
But preemption goes even further when considering other federal laws. In response to Texas’s S.B. 8, Health & Human Services Secretary Becerrathat the Emergency Medical Treatment and Labor Act requires emergency departments to treat pregnant patients and those experiencing pregnancy loss and that any contrary state law would be preempted.
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