A group of 21 pro-life attorneys general is defending West Virginia’s abortion law, asking a district court to dismiss abortion pill manufacturer GenBioPro’s “outlandish” legal interpretation challenging the state’s restrictions.
“Each of the […] States has a sovereign interest in protecting their citizens—born and unborn—and has an interest in ensuring their laws are not preempted under an outlandish interpretation of the Food, Drug and Cosmetic Act (FDCA),” reads last week’s brief, which included Mississippi, Florida, South Dakota, and others.
Filed last week, the motion is the latest salvo in an ongoing war over post-Dobbs abortion pill access across the U.S. Pro-life laws in West Virginia and North Carolina have encountered lawsuits claiming that the Food and Drug Administration’s (FDA) guidance on mifepristone effectively trumps state restrictions as part of a legal concept known as pre-emption.
Texas, which also joined the motion, is currently hearing a lawsuit in which doctors are challenging the FDA’s initial authorization of the abortion pill.
The 21 attorneys general echoed West Virginia’s prior motion to dismiss in arguing that GenBioPro grossly misinterpreted case law surrounding pre-emption. Both cited the Supreme Court’s decision in Dobbs as further justification for states restricting abortion via pill within their borders.
GenBioPro’s January lawsuit argued:
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. Dobbs addressed only the underlying personal constitutional privacy right as it pertains to abortion; it did not speak to federal law regulating a drug maker’s sale and distribution of, or a patient’s access to, medication that is FDA-approved for distribution nationwide.
It adds that “West Virginia cannot override FDA’s determinations about the appropriate restrictions on a medication that FDA approved for use and Congress subjected to this enhanced regulatory regime.”
GenBioPro dropped a similar lawsuit in Mississippi after the decision in Dobbs. While North Carolina’s and West Virginia’s legal battles are unfolding, it seems possible that further court battles are on their way. The judge in that case has reportedly scheduled a hearing for Wednesday and a dozen states have already filed a lawsuit accusing the FDA’s abortion pill regulations of being excessively burdensome.
Extremely controversial, the abortion pill has encountered liberalized and restrictive regulations under different presidents. President Biden’s FDA notably reversed its predecessor’s decision to maintain the in-person dispensing requirement for the drug regimen – something pro-life advocates maintain is critical to prevent potentially fatal health complications.
Under Biden, however, the FDA removed those requirements, arguing that the literature indicated women could safely obtain the pill without that requirement. More recently, it released updated guidance allowing certified pharmacies to dispense the abortion pill. That prompted South Dakota Gov. Kristi Noem to remind pharmacies they faced penalties for dispensing the life-ending drug, which women may obtain by mail.
