GOP states say the FDA has no authority to overturn state bans

Boxes of the drug mifepristone, used to induce a medical abortion, are prepared for patients at the Planned Parenthood Health Center in Birmingham, Alabama March 14, 2022.

Evelyn Hockstein Reuters

The Food and Drug Administration’s power to approve drugs does not override state bans on the abortion pill, a coalition of Republican attorneys general told a federal judge this week.

The GOP’s 21 attorneys general told a federal court in West Virginia on Monday that they should dismiss a lawsuit brought by GenBioPro, one of the makers of the abortion pill mifepristone. The company has asked the court to overturn West Virginia’s abortion ban, arguing that it conflicts with how the FDA regulates mifepristone under federal law.

Republicans argued in their brief in court that FDA approval of a drug does not give the manufacturer the full right to sell the drug at any time. States have the power to regulate abortions, whether performed through surgery or drugs, they said.

The GOP Attorney General said West Virginia law does not outright ban the abortion pill. Mifepristone can be used in cases of medical emergencies, rape and incest, they said. But the FDA’s powers wouldn’t overrule West Virginia law even if the state were to ban mifepristone outright.

“Even if West Virginia had banned mifepristone, there would still be no preemption problem,” argued the Republican attorney general. Nothing in the statute that governs the FDA prevents a state from banning a drug that federal law otherwise permits, they said.

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GenBioPro has argued that West Virginia’s abortion ban violates the US Constitution’s supremacy and commerce clauses, which give the FDA the power to decide which drugs are sold statewide.

“State regulation of mifepristone is destroying the national common market and is at odds with a strong national interest in ensuring access to a state-approved drug to terminate a pregnancy, leading to the kind of economic disruption that the framers are experiencing wanted to avoid the clause,” argued GenBioPro’s attorneys in the lawsuit.

“A state’s policing authority does not extend to the functional prohibition of an article of interstate commerce — the Constitution leaves that to Congress,” the company’s attorneys wrote.

Mifepristone has become a central front in the fight for access to abortion after the Supreme Court ruled last June that Roe v. to fall Wade. The FDA and companies such as Walgreens have been thrust into the center of this conflict.

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A group of anti-abortion doctors have sued the FDA in a federal district court in Texas to overturn their long-standing approval of mifepristone. Republican attorneys general in 22 states have also officially supported this lawsuit through a brief filed in support.

The Biden administration, in its response to the Texas lawsuit, said rescinding mifepristone would damage the pharmaceutical industry’s trust in the FDA and potentially hamper future drug development.

Meanwhile, Democratic attorneys general have sued the FDA in a federal district court in Washington state to force the agency to drop all remaining federal restrictions on the drug.

Walgreens has also come under fire after announcing it would sell mifepristone, but only where it’s legal. Republican attorneys general in 21 states warned the drugstore chain not to sell the drug in their states. Walgreens said it would not distribute or ship mifepristone in those states.

California Gov. Gavin Newsom said Monday the state will no longer do business with Walgreens because the company decided not to sell the abortion pill in some states.

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