West Virginia AG wins dismissal of challenge against new abortion pill legislation

A U.S. district judge on Thursday dismissed portions of a lawsuit brought against West Virginia by a manufacturer of a generic version of the abortion drug mifepristone over the state’s restrictions on the medication.

GenBioPro sued the state’s attorney general in January, claiming the abortion ban and other restrictions have caused it “significant, ongoing economic injury.”

District Judge Robert Chambers dismissed claims by GenBioPro that a September 2022 law banning abortion at every stage of pregnancy, featuring exceptions for medical emergencies, rape and incest, and other previous restrictions on the state, are preempted by federal law. Chambers also dismissed claims by GenBioPro as related to the Constitution’s Commerce Clause, the law allowing Congress to govern commerce.

“States enact laws pursuant to their police power to regulate public health and morality,” Chambers’ ruling read. “Morality-based laws often curtail the sale of goods. The vendors of curtailed goods may lose sales opportunities. Outraged, vendors can feel the laws must somehow be unconstitutional.”

West Virginia Attorney General Patrick Morrisey, one of the plaintiffs in the case, said he is “pleased” with the court’s decision in a statement obtained by The Hill Thursday. He appeared to reference the Supreme Court’s 2022 decision to strike down Roe v. Wade in his statement as well. 

“While it may not sit well with manufacturers of abortion drugs, the U.S. Supreme Court has made it clear that regulating abortion is a state issue,” the attorney general continued. “I will always stand strong for the life of the unborn.”

In a statement by obtained by The Hill, the CEO of GenBioPro Evan Masingill said the company is “considering our next steps in the fight to ensure access for patients who need this essential medication.”

“We are currently reviewing today’s ruling from the Court that denies West Virginia’s request to dismiss our challenge to the state’s telemedicine ban and grants the state’s request to dismiss our challenge to the ban on abortion,” Masingill said in the statement. 

“The Court’s decision comes after a ruling where it found GenBioPro was being harmed by the state’s restrictions on mifepristone and had standing to bring suit,” Masingill continued.

Updated at 4:28 p.m. Aug. 25