Federal judge dismisses challenge to West Virginia's restrictions on abortion drugs

Federal judge dismisses challenge to West Virginia’s restrictions on abortion drugs


A federal judge ruled in favor of West Virginia’s restrictions on medication abortion Thursday, dismissing part of a lawsuit brought by an abortion drug manufacturer earlier this year.

District Judge Robert Chambers rejected the manufacturer’s claim that the state’s near-total abortion ban, which took effect last September, conflicted with the US Food and Drug Administration’s regulation and approval of the drugs.

The ban “has limited when an abortion may be performed, without touching how medication abortion is to be performed,” Chambers said in his ruling. Subsequently, he wrote, the court “is compelled to find that federal regulation of medication abortion prescription does not conflict with severe state limitations on abortion.”

The lawsuit is one of many that were filed across the country in the wake of the Supreme Court’s ruling last summer that overturned federal abortion protections. Many Republican-led states have since moved to curb abortion rights – including outright bans of the procedure – and medication abortion has become a particularly acute flashpoint as it makes up a majority of abortions obtained in the US.

In January, GenBioPro – the manufacturer of a generic version of mifepristone – sued West Virginia Attorney General Patrick Morrisey and Putnam County prosecuting attorney Mark Sorsaia alleging that the state’s abortion ban and a 2021 measure prohibiting the prescription of abortion drugs via telemedicine violate the US Constitution’s Supremacy and Commerce clauses.

West Virginia Attorney General Patrick Morrisey speaks with reporters during a press conference at the state Capitol in Charleston on Thursday, May 4, 2023, in Charleston, West Virginia.

The company argued that the restrictions are preempted by federal law that gives the FDA the authority to regulate medication abortion and Congress the authority to regulate interstate commerce.

In response, both defendants moved to dismiss the case.

While the judge dismissed GenBioPro’s challenge to the abortion ban Thursday, he allowed its challenge to the state’s restriction on the prescription of abortion drugs via telehealth services to continue.

In his order, Chambers said the restriction “dictates the manner in which” the drug could be prescribed, and Congress has assigned the FDA to make that determination.

Following Thursday’s ruling, Morrisey said that he is “pleased” with the decision and looks forward “to arguing the remaining issue of this lawsuit.”

“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,” Morrisey said in a statement. “I will always stand strong for the life of the unborn.”

GenBioPro said in a statement shared with CNN that the company is “reviewing” the mixed ruling.

“We are confident in the legal strength of our claims and are considering our next steps in the fight to ensure access for patients who need this essential medication,” GenBioPro CEO Evan Masingill said in the statement.

Access to medication abortion remains on the line as several other challenges to the drugs play out in court.

Earlier this month, a federal appeals court wiped away a lower court decision that would’ve taken mifepristone off the market but ruled in favor of limiting access to the drug. The Justice Department has indicated that it will ask the Supreme Court to review the ruling, potentially setting the stage for the high court to weigh in on abortion yet again.

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