Last June, the U.S. Supreme Court, in a 6-3 ruling, struck down the Roe v. Wade decision that legalized abortion across the country, and sent the issue back to the states. Just three months later, the West Virginia Legislature passed a law prohibiting abortions, except in very limited circumstances.
But that was not the end of the story. The court’s decision prompted yet another legal question: Prescription drugs that terminate pregnancies in the early weeks were approved by the U.S. Food and Drug Administration 23 years ago. Would abortion bans also prohibit those drugs from being prescribed and used?
West Virginia’s law envisions just that. It says “an abortion may not be performed or induced or be attempted to be performed or induced,” except in limited circumstances. Therefore, it is currently unlawful to prescribe or use mifepristone and misoprostol, which are used to terminate pregnancies up to 10 weeks.
But there is a legal dispute over that interpretation, and West Virginia is going to be the battleground for the issue.
GenBioPro Inc., developer of a generic version of mifepristone, has filed a lawsuit in federal court in West Virginia claiming the state’s abortion law “interferes” with the legal sale of a drug approved by the FDA.
“Federal law preempts West Virginia’s ban and restrictions,” the lawsuit claims. “These laws impermissibly restrict patients’ access to mifepristone and GenBioPro’s opportunity and ability to market, promote, and sell the medication in the State.”
That argument was also put forth by U.S. Attorney General Merrick Garland after the Supreme Court decision. “States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” Garland said.
West Virginia Attorney General Patrick Morrisey challenged that assumption after the lawsuit was filed in West Virginia this week.
“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 stand strong for the life of the unborn and will not relent in our defense of this clearly constitutional law.”
The legal question is one of primacy. When federal and state laws conflict, which one prevails? Typically, the federal government does, because of the Supremacy Clause of the U.S. Constitution. But Morrisey will make a federalism argument. “The state retains the police power to regulate how drugs may be used by medical professionals,” he said.
This high-stakes case will begin in federal court in the Southern District of West Virginia. Regardless of the outcome, there will be appeals and, ultimately, the U.S. Supreme Court might once again find itself taking up abortion.