Court dismisses drug maker’s challenge to West Virginia abortion ban

By: - August 25, 2023 12:25 pm
A glass of water beside a b ox of pills and four loose pills on the table.

Abortion pills and drinking water. (Peter Dazeley | Getty Images)

West Virginia can ban the sale of a U.S. Food and Drug Administration-approved abortion drug, a federal judge ruled Thursday. 

United States District Judge Robert Chambers granted a motion from state Attorney General Patrick Morrisey to dismiss in part a challenge to the state’s near-total abortion ban from GenBioPro, a company that manufactures a generic version of the abortion pill mifeprestone.

The company argued the state’s near total abortion ban violates the commerce clause of the constitution and that federal law preempts the state from restricting mifepristone.

Chambers dismissed the company’s claim that the state’s abortion ban violates the commerce clause and allowed a challenge to a telehealth provision in the law to proceed. 

“States enact laws pursuant to their police power to regulate public health and morality. Morality-based laws often curtail the sale of goods,” Chambers wrote. “The vendors of curtailed goods may lose sales opportunities. Outraged, vendors can feel the laws must somehow be unconstitutional. And yet, the Supreme Court and Courts of Appeals have repeatedly affirmed that morality-based product bans do not intrinsically offend the dormant Commerce Clause.”

In a statement Thursday, Morrisey said he’s pleased that the court agreed that the state’s abortion ban is constitutional. 

“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. “I will always stand strong for the life of the unborn.”

In a statement, the drug manufacturer said it’s reviewing the ruling and considering its next steps. 

“The Court’s decision comes after a ruling where it found GenBioPro was being harmed by the state’s restrictions on mifepristone and had standing to bring suit,” the company said. “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 was founded on the belief that all people should have access to evidence-based, essential medication and will continue to use all legal and regulatory tools available to ensure access for all,” it said. 


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Lori Kersey
Lori Kersey

Lori Kersey is a reporter with a decade of experience reporting in West Virginia. She covers state government for West Virginia Watch.