Abortion pill maker challenges ban in West Virginia

The maker of a generic version of mifepristone, the first of two drugs used in medication abortions, sued West Virginia’s attorney general and a local prosecuting attorney on Wednesday over the state’s restrictions on the medication.

GenBioPro argued that West Virginia’s abortion ban and restrictions have caused it “significant, ongoing economic injury” and are preempted by federal law.

Following the Supreme Court’s decision to overturn Roe v. Wade, West Virginia Gov. Jim Justice (R) in September signed into law a ban on abortions at all stages of pregnancy, with certain exceptions for medical emergencies, rape and incest.

Prior to the abortion ban, West Virginia had placed restrictions on medication abortions, such as requiring doctors to wait 24 hours after obtaining a patient’s consent to provide the medication and banning doctors from prescribing the medication via telemedicine. These restrictions would go back into effect if the state’s abortion ban were overturned.

GenBioPro argued in Wednesday’s filing that both West Virginia’s abortion ban and its previous restrictions conflict with the authority that Congress provided to the Food and Drug Administration (FDA) to approve and regulate access to drugs like mifepristone.

The FDA first approved the use of mifepristone for the medical termination of pregnancies in 2000, alongside certain regulations to ensure the drug was used safely. The FDA updated its regulations on mifepristone earlier this month to allow the medication to be received via mail or at certified pharmacies.

“The Supreme Court’s decision in Dobbs did not displace Congress’s and FDA’s roles in protecting the public health by deciding whether drugs are safe and effective, determining which precautions — if any — are necessary to ensure a drug’s safe use, and ensuring safe and effective drugs are available to the public,” the lawsuit said.

West Virginia Attorney General Patrick Morrisey (R) responded to the lawsuit in a statement on Wednesday, saying he is “prepared to defend West Virginia’s new abortion law to the fullest.”

“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,” he added. “I will stand strong for the life of the unborn and will not relent in our defense of this clearly constitutional law.”

A North Carolina physician brought a similar case against the Tar Heel State on Wednesday, arguing that North Carolina’s restrictions on abortion medications are preempted by the FDA’s regulations.