HUNTINGTON – The final count in a chemical abortion drug manufacturer’s challenge to West Virginia laws that bar prescribing the drug via telehealth has been dismissed.
U.S. District Judge Robert C. “Chuck” Chambers entered a final dismissal order November 6 in the case GenBioPro had filed regarding its generic mifepristone abortion pill mifepristone.
In August, West Virginia Attorney General Patrick Morrisey’s office won an earlier partial dismissal when Chambers ruled West Virginia’s Unborn Child Protection Act was not preempted by federal law and dismissed all other claims except the preemption attack on the telehealth provisions.
Chambers
“The U.S. Supreme Court has made it clear that regulating abortion is a state issue, and I will always stand strong for the life of the unborn,” Morrisey said. “As we did in federal district court, we stand ready to defend West Virginia law 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.”
Monday’s final dismissal sets up an expected appeal.
GenBioPro had asked the court to render the state’s pro-life laws unconstitutional, claiming Congress gave the Food and Drug Administration the power to mandate nationwide access to chemical abortions — preempting West Virginia’s laws.
Chambers rejected most of those arguments in August, saying the state is free to pass and enforce such laws. The only part of the state’s near-total protection for life that the court found still could be challenged is the law ensuring women see a physician in person before receiving chemical abortion drugs. West Virginia had amended its law to prohibit telehealth practitioners from “prescribing or dispensing an abortifacient.”
In its federal lawsuit filed February 1, GenBioPro said West Virginia’s new abortion law violates several laws and that the state cannot enforce a ban of a U.S. Food and Drug Administration-approved drug. It asked the court to find the state’s abortion law unconstitutional.
But Morrisey’s office said mifepristone is not banned under the law, which is also called the Unborn Child Protection Act. Morrisey’s office says the pill can be used in cases where legal abortion can take place in compliance with state law. The act prohibits abortions except in cases of rape or incest or to protect the life of the mother.
When used with another drug called misoprostol, mifepristone accounted for almost half of all abortions in the United States in 2020. The FDA also has relaxed restrictions on the medication. During the COVID-19 pandemic, it allowed patients to receive the pill by mail. And this month, the FDA approved retail pharmacy dispensing of the drug with a certificate.
West Virginia’s law bans most abortions. There are exceptions for rape and incest victims as well as in cases of life-threatening medical emergencies and nonviable pregnancies.
GenBioPro is being represented by Anthony Majestro and Christina Smith of Powell & Majestro in Charleston as well as by David C. Frederick, Ariela M. Migdal, Eliana Margo Pfeffer and Mary Charlotte Y. Carroll of Kellogg Hansen Todd Figel & Frederick in Washington, John P. Elwood, Daphne O’Connor and Robert J. Katerberg of Arnold & Porter Kaye Scholer in Washington and by Skye L. Perryman and Kristen Miller of Democracy Forward Foundation in Washington. The AG’s office is being represented by Chief Deputy AG Douglas P. Huffington II and Deputy AG Curtis R.A. Capehart as well as Denise M. Harle and Erin M. Hawley of Alliance Defending Freedom. Putnam County Prosecuting Attorney Kristina Raynes, who also was named as a defendant in the suit after former Prosecutor Mark Sorsaia became the state Secretary of Homeland Security, is being represented by Assistant Putnam County Prosecuting Attorney Jennifer Scragg Karr.
U.S. District Court for the Southern District of West Virginia case number 3:23-cv-00058
