CHARLESTON, W.Va. (WBOY) — GenBioPro, the maker of the generic abortion drug mifepristone, has filed an appeal to the United States Court of Appeals for the Fourth Circuit in its legal challenge to West Virginia’s abortion law.
The Unborn Child Protection Act was passed in September 2022 after the Supreme Court’s Dobbs decision effectively overturned Roe v. Wade. The law prohibits abortions at all stages unless in medical emergencies, cases where the fetus is non-viable, has abnormalities or is the result of rape or incest that has been reported to law enforcement and that is fewer than eight weeks old for women and 14 weeks old for girls. It also prohibits abortion pills from being prescribed via telehealth appointments.
At issue is the Federal Food Drug and Cosmetic Act, as well as the Commerce Clause since the U.S. Food and Drug Administration (FDA) approved mifepristone for women who are up to 10 weeks pregnant. The company is arguing that those laws protect West Virginians’ access to the abortion drug, but the State of West Virginia is arguing that those laws do not supersede its ability to regulate abortion after the Dobbs decision.
GenBioPro initially sued West Virginia over the law in January 2023. The suit was partially dismissed in August when a federal judge ruled those acts do not grant the FDA “the power to mandate nationwide abortion access.” The remainder of the suit was dropped earlier this week, although West Virginia Attorney General Patrick Morrisey’s Office said it expected the company would appeal.
“Today’s appeal is a critical next step in our fight to protect access to medication abortion,” Skye Perryman, President and CEO of Democracy Forward, who is also serving as counsel for the company, said in a press release. “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. 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.”
The Fourth Circuit Court of Appeals is based in Richmond, Virginia, and is considered to be one of the more liberal circuit courts.