WV can restrict abortion pill access, appeals court says

The Fourth Circuit Court of Appeals ruled Tuesday that West Virginia can restrict access to the abortion pill, dismissing a challenge from drug manufacturer GenBioPro. 

West Virginia lawmakers passed a near-total abortion ban in September 2022, on the heels of Dobbs vs. Jackson Women’s Health Organization, a U.S. Supreme Court decision that overturned Roe V. Wade. 

GenBioPro, which makes a generic form of the abortion drug mifepristone, challenged the abortion ban, arguing that the Federal Food and Drug Administration’s regulation of the abortion drug should preempt the state law. 

With a 2-1 decision Tuesday, the judges court upheld an August 2023 ruling from the U.S. District Court for the Southern District of West Virginia.

“The district court determined there was no preemption, and we now do the same,” Judge J. Harvie Wilkinson wrote in the 45-page opinion published Tuesday. “For us to once again federalize the issue of abortion without a clear directive from Congress, right on the heels of Dobbs, would leave us one small step short of defiance.

“Appellant GenBioPro finds this clear directive in a maze of provisions in the Food and Drug Administration Amendments Act of 2007. It argues that these provisions vested the FDA with the exclusive authority to regulate access to mifepristone. We disagree,” he wrote. 

In a statement and a post on the social media platform X, Gov. Patrick Morrisey, who defended the abortion ban in his prior role as state attorney general, called the ruling a “big win” and a “pro-life victory.”

“…I am proud to see a victory in this case,” Morrisey said. “West Virginia can continue to enforce our pro-life laws and lead the nation in our efforts to protect life. We will always be a pro-life state!”

GenBioPro produces the majority of the mifepristone sold in the United States. The drug is one of two used in a regimen to end an early pregnancy. The company has held FDA approval for generic mifepristone since 2019, it wrote in a news release. 

The drug manufacturer said Tuesday’s ruling jeopardizes women’s access to FDA-approved medication. 

“The court is allowing the state to continue putting those seeking medication abortion care in harm’s way,” CEO Evan Masingill said in the statement. “The panel’s ruling allows states to restrict access to medications that the FDA has deemed safe and effective, threatening a dangerous ripple effect on the availability of essential medications in this country. 

“As we have always made clear, GenBioPro will not stop fighting to ensure all people can access safe, evidence-based health care,” he said.