West Virginia’s attorney general is urging a judge to throw out a lawsuit that seeks to overturn state restrictions on the abortion pill.
State Attorney Patrick Morrisey on Tuesday asked a federal court in the Southern District of West Virginia to throw out a lawsuit brought by GenBioPro, which makes a generic version of an abortion pill called mifepristone.
GenBioPro sued West Virginia in January, arguing that the Food and Drug Administration’s authority to approve and regulate drugs preempts the state’s restrictions on the abortion pill.
“A state’s police power does not extend to the Article’s functional prohibition of interstate commerce — the Constitution leaves that to Congress,” GenBioPro’s lawyers wrote.
The case is one of a series of ongoing legal battles in federal courts across the United States over the FDA’s two-decade-old approval of mifepristone. In Texas, anti-abortion doctors asked a federal judge to revoke the agency’s approval and pull the pill from the U.S. market.
West Virginia’s attorney general said the FDA does not have the authority to set abortion policy nationwide through the approval of mifepristone. He described GenBioPro’s argument as a “breathtaking assertion of federal agency power.” The Supreme Court gave states the power to regulate abortion after it overturned Roe v. Wade last June, he argued.
“Congress has not quietly ceded this extensive area of historically state regulation to the FDA,” Morrisey argued in the court filing.
GenBioPro asked the court to declare the West Virginia law, which bans abortion with a few exceptions, unconstitutional. The state allows abortions when a doctor determines that the mother’s life is in danger or when the child is not viable. Abortion is also permitted in cases of rape or incest before the eighth week of pregnancy for an adult or before the 14th week for a minor.
Morrisey said mifepristone is legal for use in West Virginia under these circumstances. The FDA has approved the use of the pill until the 10th week of pregnancy.
West Virginia does not allow patients to obtain a prescription for mifepristone via telemedicine. On the other hand, the FDA has phased out federal regulations that required in-person visits and now allows patients to obtain prescriptions for the pill via telemedicine and have it delivered by mail.
“West Virginia retains police power to regulate how doctors can prescribe and dispense drugs,” Morrisey argued.
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