West Virginia’s Attorney General is asking a judge to dismiss a lawsuit aimed at overturning state restrictions on the abortion pill.
Attorney General Patrick Morrisey on Tuesday asked federal court in the Southern District of West Virginia to dismiss the lawsuit brought by GenBioPro, which manufactures the generic version of the abortion pill called mifepristone.
GenBioPro sued West Virginia in January, arguing that the Food and Drug Administration’s powers to approve and regulate drugs pre-empt state restrictions on the abortion pill.
“A state’s policing powers do not extend to the functional prohibition of an article of interstate commerce — the Constitution leaves that to Congress,” attorneys for GenBioPro wrote.
The case is one in a series of lawsuits in US federal courts over the two-decade-old FDA approval of mifepristone. In Texas, anti-abortion advocates have asked a federal judge to overturn the agency’s approval and remove the pill from the US market.
West Virginia’s Attorney General said the FDA does not have the authority to set nationwide abortion guidelines by approving mifepristone. He described GenBioPro’s argument as a “stunning assertion of federal agency power.” The Supreme Court gave states the power to regulate abortion after ruling Roe v. Wade had fallen, he argued.
“Congress has not tacitly ceded this vast area of historic federal regulation to the FDA,” Morrisey argued in the court filing.
GenBioPro has asked the court to declare West Virginia’s law, which bans abortion with few exceptions, unconstitutional. The state allows abortions if a doctor determines that the mother’s life is in danger or the child is not viable. Abortion is also permitted in the case of rape or incest before the eighth week of pregnancy for an adult or the fourteenth week of pregnancy for a minor.
Morrisey said mifepristone is legal in West Virginia under these circumstances. The FDA has approved the pill for use up to the 10th week of pregnancy.
West Virginia does not allow patients to receive a prescription for mifepristone through telemedicine appointments. The FDA, on the other hand, has gradually eliminated federal regulations requiring in-person visits and is now allowing patients to receive prescriptions for the pill via telemedicine and have them delivered through the mail.
“West Virginia retains police powers to regulate how medicines are prescribed and dispensed by medical professionals,” Morrisey argued.
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