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> 2. Medical advancements, specifically various abortion pills, some of which are incredibly effective and safe. These didn't exist before Roe v. Wade. States m

by mlyle 4y ago

> 2. Medical advancements, specifically various abortion pills, some of which are incredibly effective and safe. These didn't exist before Roe v. Wade. States may well try to ban their distribution but this is clearly interstate commerce, which is explicitly stated in the Constitution as a Federal power, so even this Court will have trouble coming up with a post-hoc rationalization to ban it (I hope); States restrict commerce in all kinds of goods and already have different laws about medications in practice. The question is likely-- to what extent is that authority preempted by FDA regulation?

jmyeet 4y ago
Obviously states can restrict certain kinds of commerce but you might be surprised how limited that power is. The Federal government has pre-eminence when it comes to not only interstate commerce but issues that affect interstate commerce. I present to you Wickard v. Filburn [1]. A farmer (Filburn) was growing wheat on his own property to use as animal feed. Said wheat wasn't being sold or transported across state lines. > The Court decided that Filburn's wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally, is thus interstate, and is therefore within the scope of the Commerce Clause. I personally think this decision is overreach because it technically means almost anything falls under the Commerce Clause but hey, that's the settled law of the land (until it isn't like Roe and Casey). [1]: https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn
- mlyle 4y ago
  Yes, I'm familiar with Wickard v. Filburn. This established that a farmer growing wheat on his own property for use on his property was subject to federal regulation of commerce... not that his own state could not also regulate things about wheat sold in the state. There are powers reserved exclusively to the federal government; there are powers reserved exclusively to the states. And there are things in-between, where we have laws from both. States choose all kinds of goods that are sold in interstate commerce to be legal or not legal. The big question here is, the Fed gov't has a large regulatory and oversight operation for drugs. Does it completely preempt state action? For e.g. securities, we have both Federal SEC and state "blue sky" laws. For drugs, we've not really had a great test case to find out.

by mlyle 4y ago

jmyeet 4y ago

Obviously states can restrict certain kinds of commerce but you might be surprised how limited that power is. The Federal government has pre-eminence when it comes to not only interstate commerce but issues that affect interstate commerce. I present to you Wickard v. Filburn [1]. A farmer (Filburn) was growing wheat on his own property to use as animal feed. Said wheat wasn't being sold or transported across state lines. > The Court decided that Filburn's wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally, is thus interstate, and is therefore within the scope of the Commerce Clause. I personally think this decision is overreach because it technically means almost anything falls under the Commerce Clause but hey, that's the settled law of the land (until it isn't like Roe and Casey). [1]: https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn

mlyle 4y ago
Yes, I'm familiar with Wickard v. Filburn. This established that a farmer growing wheat on his own property for use on his property was subject to federal regulation of commerce... not that his own state could not also regulate things about wheat sold in the state. There are powers reserved exclusively to the federal government; there are powers reserved exclusively to the states. And there are things in-between, where we have laws from both. States choose all kinds of goods that are sold in interstate commerce to be legal or not legal. The big question here is, the Fed gov't has a large regulatory and oversight operation for drugs. Does it completely preempt state action? For e.g. securities, we have both Federal SEC and state "blue sky" laws. For drugs, we've not really had a great test case to find out.