RICHMOND, Virginia – Attorneys General from 23 states as well as several pro-life groups have filed amicus briefs asking a federal appeals court to uphold West Virginia’s near-total ban on abortion.
The briefs were filed April 15 with the U.S. Fourth Circuit Court of Appeals, which is hearing the case after West Virginia AG Patrick Morrisey asked a federal district court to uphold the state’s Unborn Child Protection Act in February 2023. In August, U.S. District Judge Chuck Chambers partially dismissed the lawsuit, prompting abortion drug manufacturer GenBioPro to appeal the case in August to the Fourth Circuit.
In his ruling, Chambers said the U.S. Supreme Court’s Dobbs decision that overturned Roe v. Wade makes it clear the regulation of abortion falls on the states, and that West Virginia was regulating health care, not the company itself, in the Unborn Child Protection Act.
Morrisey
| Courtesy photo
“The district court got it right months ago when it found the Unborn Child Protection Act is constitutional,” Morrisey said. “The appellate court is ultimately dealing with basic principles of federalism here — whether a state is entitled to regulate for health and safety. And while manufacturers of abortion drugs may not like it, the U.S. Supreme Court has made it clear that regulating abortion is a state issue.
“I have always stood for protecting life, and I am proud to be joined by my fellow attorneys general and pro-life advocates in standing strong for the life of the unborn.”
GenBioPro, which manufactures generic chemical abortion drug mifepristone, argues that Congress gave the Food and Drug Administration the power to mandate nationwide access to chemical abortions.
Alliance Defending Freedom supports Morrisey’s position that such decisions should be made by states and that West Virginia’s Unborn Child Protection Act protects the lives of the unborn and mothers.
“West Virginia has a strong and compelling interest in protecting unborn life, maternal health and safety, and the integrity of the medical profession,” said ADF Senior Counsel Erin Hawley, vice president of the ADF Center for Life and Regulatory Practice. “Neither GenBioPro nor the FDA has the authority to set national abortion policy much less through the Food and Drug Act, which sets minimum safety standards for high-risk drugs and says nothing about abortion.”
In his ruling, Chambers said the state is free to enforce the Unborn Child Protection Act, but he did not decide whether West Virginia’s informed-consent requirements for abortion were constitutional because those laws are not currently in effect. The only part of the state’s near-total abortion ban Chambers found preempted was a law ensuring women see a physician in person before receiving chemical abortion drugs.
In November, Chambers dismissed the final count in GenBioPro's challenge claiming the act barred prescribing mifepristone via telehealth.
Morrisey now is asking the Fouth Circuit to uphold the Unborn Child Protection Act and informed-consent law.
“West Virginia’s generally applicable abortion ban doesn’t conflict with the FDA’s regulation of mifepristone,” the 23 AGs write in the brief led by Arkansas AG Tim Griffin. “Rather than attack any particular abortion method — or render a differing judgment on the safety and efficacy questions the FDA has addressed — West Virginia’s law says, on entirely distinct moral grounds, that abortions may not be performed altogether.”
Another brief from Advancing American Freedom and other nonprofits says West Virginia’s Unborn Child Protection Act “protects both the rights of the unborn and the wellbeing of women by prohibiting abortions in most cases.”
ADF is a nonprofit legal organization that works to protect religious freedom, free speech, parental rights and the sanctity of life. In a separate case, the group also represents four medical associations and four doctors challenging the FDA’s removal of safeguards on abortion drugs. That case was argued before the U.S. Supreme Court in March.
In February, several healthcare experts filed briefs supporting GenBioPro’s 4th Circuit appeal in the West Virginia case just a week after the company filed its appellate brief saying the post-Dobbs ban is in direct conflict with federal law.
“Congress was clear about the specific regulatory structure that should govern mifepristone and it is the FDA, not West Virginia, that regulates the medication,” said Skye Perryman, president and CEO of Democracy Forward, which is representing GenBioPro in the case. “The broad array of support for GenBioPro’s case underscores the matter’s significance not only for the people in West Virginia but for our overall democracy and regulatory system.”
GenBioPro filed its appeal brief February 7 asking the Fourth Circuit asking it to reverse what it calls the state’s “extremist” Unborn Child Protection Act that came in the wake of the U.S. Supreme Court’s Dobbs ruling, which overturned Roe v. Wade.
West Virginia’s Unborn Child Protection Act bans abortions in almost all cases at any stage of pregnancy and makes it a felony for anyone other than physicians to sell, prescribe or dispense mifepristone outside of the act’s narrow exceptions.
GenBioPro, the nation’s only generic manufacturer of mifepristone, says only the FDA may regulate access to the drug.
Also in February, GenBioPro filed an amicus brief with the U.S. Supreme Court asking it to reverse a Fifth Circuit ruling from last year that would force the FDA to reinstate conditions on the use of mifepristone that existed before 2016.
The company says it products about two thirds of all mifepristone sold in the United States, and it has held FDA approval for the generic version since 2019. Medical abortion using the two-drug regimen involving mifepristone early in pregnancy – with another drug called misoprostol – is the most common and preferred form of abortion care in the United States, accounting for more than half of all pregnancy terminations.
The FDA has relaxed restrictions on the medication. During the COVID-19 pandemic, it allowed patients to receive the pill by mail. And last year, 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.
Other AGs who joined the Arkansas-led brief are those from Alabama, Alaska, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah and Wyoming.
The pro-life groups listed on the April 15 amicus briefs are Advancing American Freedom, The American Center for Law and Justice, Family Research Council and Concerned Women for America, Heartbeat International, Institute for Family Health, American Values, Americans United For Life, Anglicans For Life, Association For Mature American Citizens, Center For Political Renewal, Center for Urban Renewal and Education, Christian Law Association, Christian Medical & Dental Associations, Eagle Forum, Family Council In Arkansas, Charlie Gerow, Global Liberty Alliance, International Conference of Evangelical Chaplain Endorses, Tim Jones, Missouri Center-Right Coaltion, Louisiana Family Forum, Men and Women for a Representative Democracy in America, Men For Life, National Center for Public Policy Research, National Religious Broadcasters, New Jersey Family Foundation, New Jersey Family Policy Center, Pennsylvania Eagle Forum, Project 21 Black Leadership Network, Pro-Life Wisconsin, Rio Grande Foundation, Setting Things Right, 60 Plus ASsociation, Students for Life of America, The Christian Law Association, The Family Foundation (Virginia), The Justice Foundation, Tradition Family Property Inc., Women for Democracy In America Inc., Wisconsin Family Action Institute and Young America's Foundation.
U.S. Court of Appeals for the Fourth Circuit case number 23-2194 (U.S. District Court for the Southern District of West Virginia case number 3:23-cv-00058)