West Virginia seeks to dismiss lawsuit over abortion pill access

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West Virginia’s attorney general is urging a judge to dismiss a lawsuit seeking to overturn state restrictions on the abortion pill.

State Attorney General Patrick Morris on Tuesday asked federal court in the Southern District of West Virginia to dismiss a lawsuit brought by GenBioPro, which makes a 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 drugs preempt state restrictions on the abortion pill.

GenBioPro’s lawyers wrote, “A state’s police power does not extend to functionally banning an article of interstate commerce—the Constitution leaves this up to Congress.”

The case is one in a series of ongoing legal battles in US federal courts over the FDA’s two-decade-old approval of mifepristone. In Texas, anti-abortion advocates have asked a federal judge to overturn the agency’s approval and withdraw the pill from the US market.

West Virginia’s attorney general said the FDA does not have the power to set nationwide abortion policy through its approval of mifepristone. He described GenBioPro’s argument as a “breathtaking assertion of federal agency power.” The Supreme Court gave states the power to regulate abortion last June after overturning Roe v. Wade, they argued.

“Congress has historically not quietly handed over this vast area of ​​state regulation to the FDA,” Morris argued in the court filing.

GenBioPro has asked the court to declare unconstitutional a West Virginia law that bans abortion with some exceptions. The state allows abortion when a medical professional determines that the mother’s life is in danger or the child is not viable. Abortion is also permitted in cases of rape or incest before the eighth week of pregnancy for an adult or before the 14th week for a minor.

Morris said mifepristone is legal for use in West Virginia under those circumstances. The FDA has approved the pill for use up to the 10th week of pregnancy.

West Virginia does not allow patients to obtain prescriptions for mifepristone through telemedicine appointments. On the other hand, the FDA has gradually phased out federal regulations requiring in-person visits, now allowing patients to obtain prescriptions for the pill via telemedicine and have it delivered by mail. goes.

Morris argued, “West Virginia retains the police power to regulate how drugs may be prescribed and dispensed by medical professionals.”

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