Drug company appeals decision in lawsuit about West Virginia’s abortion ban

The manufacturer of a generic version of the abortion drug mifepristone is appealing a federal judge’s August ruling against it in a lawsuit over West Virginia’s near total abortion ban.

GenBioPro on Thursday filed notice of its appeal of federal Judge Robert C. Chambers’ ruling to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.

“GenBioPro is committed to delivering on our belief that everyone has a right to access evidence-based health care and safe and effective medicines, and that includes medical abortion,” GenBioPro CEO Evan Masingill said in a statement. “In affirmation of that commitment, we are taking the necessary next step in our ongoing efforts to make mifepristone accessible to all by appealing the decision in our case in West Virginia.”

Chambers ruled in August that West Virginia can restrict the sale of the abortion pill, despite federal regulators approval of the drug as safe and effective. The judge in August dismissed the company’s claim that the state’s abortion ban violates the commerce clause of the Constitution. He allowed a challenge to a telehealth provision in the law to proceed. 

GenBioPro earlier this week dropped the last count of its challenge, leading Chambers to dismiss the case.

A spokesman for the GenBioPro said Thursday the company would file the full appeal brief in the coming days. 

In a statement, the company’s attorney, Skye Perryman, called the appeal a “critical next step in our fight to protect access to medication abortion.”

“West Virginia’s decision to step in where Congress has granted FDA the authority to regulate mifepristone is unlawful and could undermine not only access to medication, but the country’s entire drug regulation system,” Perryman said. “What’s more, decades of science support mifepristone’s safety and efficacy and it is unacceptable that people living in West Virginia who need this basic health care are being forced to travel out of state or forgo care altogether. We look forward to continuing to represent GenBioPro in the further stages of this case.”

State lawmakers passed the law in September 2022, after the U.S. Supreme Court overturned Roe V. Wade. The law bans the procedure with few exceptions. The lawsuit names as defendants state Attorney General Patrick Morrisey and Kristina Raynes, in her capacity as Putnam County prosecutor. 

In a statement Tuesday announcing that the case in District Court had been dismissed, state Morrisey promised to defend the state’s abortion ban “to the fullest.” 

“There’s no doubt in my mind the new Unborn Child Protection Act is not preempted by federal law and that all of these statutes are constitutional,” he said.