West Virginia’s attorney general is urging a judge to dismiss a lawsuit in search of to overturn the state’s restrictions on the abortion pill.
State Attorney General Patrick Morrisey on Tuesday asked the federal court in West Virginia’s southern district to throw out the suit brought by GenBioPro, which manufactures the generic version of the abortion pill called mifepristone.
GenBioPro sued West Virginia in January, arguing that the Food and Drug Administration’s powers to approve and regulate medications pre-empt the state’s restrictions on the abortion pill.
“A State’s police power doesn’t extend to functionally banning an article of interstate commerce — the Structure leaves that to Congress,” GenBioPro’s lawyers wrote.
The case is one in a series of ongoing legal battles in federal courts across the U.S. over the FDA’s two-decade-old approval of mifepristone. In Texas, anti-abortion physicians have asked a federal judge to overturn the agency’s approval and pull the pill from the U.S. market.
West Virginia’s attorney general said the FDA doesn’t have the ability to set abortion policy nationwide through its approval of mifepristone. He described GenBioPro’s argument as a “breathtaking assertion of federal agency power.” The Supreme Court gave states the ability to control abortion after overturning Roe v. Wade last June, he argued.
“Congress didn’t silently cede this vast area of historically state regulation to the FDA,” Morrisey argued within the court filing.
GenBioPro has asked the court to declare unconstitutional West Virginia’s law that bans abortion with a number of exceptions. The state allows abortions when a medical skilled determines the mother’s life is in peril or the kid just isn’t viable. Abortion can be allowed in cases of rape or incest before the eighth week of pregnancy for an adult or the 14th week for a minor.
Morrisey said mifepristone is legal to be used in West Virginia in those circumstances. The FDA has approved the pill to be used through the tenth week of pregnancy.
West Virginia doesn’t allow patients to acquire a prescription for mifepristone through telemedicine appointments. The FDA, alternatively, has step by step done away with federal regulations that required in-person visits, now allowing patients to acquire prescriptions for the pill through telemedicine and have it delivered by mail.
“West Virginia retains the police power to control how drugs could also be prescribed and distributed by medical professionals,” Morrisey argued.
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