Future of Abortion Pill May Hinge on West Virginia Lawsuit

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March 21, 2023

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(BATTLE GROUND, Wash.) – A maker of the generic abortion drug mifepristone, GenBioPro, filed a lawsuit against Putnam County Prosecuting Attorney Mark A. Sorsaia and West Virginia Attorney General Patrick Morrisey.

Filed on Jan. 23, GenBioPro v. Sorsaia challenges the constitutionality of the state’s abortion ban. The plaintiff claims that by overriding the approval of the drug by the Federal Drug Administration (FDA) and preventing its sale in West Virginia, the ban violates the Supremacy and Dormant Commerce Clauses of the Constitution, respectively.

The case is among the latest in a wave of lawsuits over abortion. Statewide bans and restrictions erupted last year after the Supreme Court overruled Roe v. Wade, which had protected access to abortions for nearly 50 years. The issue, long one of the more divisive in our political discourse, has intensified as the ability of Americans to access abortion now largely depends on where they live.

“There are a lot of interstate questions that are going to arise, now that there isn’t a federal rule about a right to abortion—and this is one of them,” said Kermit Roosevelt, Professor of Constitutional Law at the University of Pennsylvania Law School.

Man in glasses on steps holding book. His button up shirt is unbuttoned at the top button like he's just gotten off work, and he's holding a large book titled In The Shadow of the Law

Kermit Roosevelt [credit: Kermit Roosevelt]

Since the 5-4 decision in Dobbs v. Jackson removed federal protections for abortion, 13 states have effectively banned abortion, with 5 more severely restricting them. With surgical, or “procedural” abortions unavailable in a growing number of states, medications like mifepristone—which can be shipped to patients regardless of where they live—have become a focal point of the fight over abortion.

Mifepristone is the first of a two-part medication abortion process, meant to be followed with misoprostol. First, mifespristone is taken to block progesterone and halt pregnancy. Then misoprostol is used to evacuate the uterus. The drugs have been approved by the FDA since 2000, with generics such as those produced by GenBioPro approved in 2019.

According to the lawsuit filing, the frequency of medication abortion rose by 45 percent between 2017 and 2020, and “now accounts for the majority of pregnancy terminations in the United States, despite the fact that people can use medication only to terminate early pregnancies.”

Scrabble tiles spelling "abortion"

[credit: Nick Youngson / Alpha Stock Images]

West Virginia’s ban on mifespristone is part of a statewide prohibition of abortion under the Unborn Child Protection from Dismemberment Act of 2022. The law states that abortions “may not be performed or induced or be attempted to be performed or induced,” except when the fetus is non-viable, or in the case of an ectopic pregnancy or other medical emergency.

GenBioPro claims that federal law preempts the ban and that the company stands to lose its right to provide mifepristone to patients in West Virginia. A similar lawsuit, also filed on Jan. 23 by Dr. Amy Bryant in North Carolina, alleges that the state’s restrictions on mifepristone amount to significant and undue burdens on healthcare providers and patients.

In Bryant v. Stein, North Carolina’s Attorney General Joshua Stein’s office announced that Bryant’s arguments “are legally correct,” and that the AG will not defend the restrictions. But West Virginia’s AG disagrees. On Feb. 21, Morrisey filed a motion to dismiss the lawsuit, citing the Supreme Court’s ruling in Dobbs that “the issue of abortion is left up to the states.”

West Virginia Attorney General Patrick Morrisey

West Virginia Attorney General Patrick Morrisey [credit: Gage Skidmore]

According to the plaintiff, the Constitution’s Supremacy Clause, which establishes that federal laws supersede state laws, prohibits West Virginia from banning a drug that has been approved by the FDA. But Roosevelt points out that if West Virginia asserts that it has the right to ban abortion by any means, the use of mifepristone could fall under the state’s jurisdiction.

The Dormant Commerce Clause, which prevents states from passing laws that discriminate against out-of-state goods, could also factor in. Roosevelt explains, “If states want to ban alcohol, they can do that. What they can’t do is say out-of-staters can’t ship alcohol in, but locals can make it.”

Mifepristone molecule super-imposed on map of West Virginia

Illustration: “Mifepristone in West Virginia” [credit: Justin Mason]

The case of mifepristone in West Virginia, and possibly the future of medication abortions more broadly, will “have to be worked out by the courts,” said Roosevelt.

GenBioPro v. Sorsaia will eventually be decided by Judge Robert C. Chambers in the Southern District of West Virginia. Chambers, appointed by President Bill Clinton in 1997, is tasked with weighing the standing of the plaintiff against the legitimacy of West Virginia’s ban.

For now, motions are still being filed by the plaintiffs and defendants as each side hopes to set the case’s parameters.

Neither Putnam County Prosecuting Attorney Mark A. Sorsaia, nor Skye Perryman of Democracy Forward, the plaintiff’s counsel, responded to The Click’s requests for comment.

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