Judge rejects argument by abortion pill maker that state ban violates Constitution

(CHARLESTON, W.V.) — West Virginia has the right to block the sale of the abortion drug mifepristone, even though federal regulators have decided the medication is safe, a federal judge ruled on Thursday.

The decision by U.S. District Judge Robert Chambers is a blow to abortion rights groups that had hoped to strike down state bans using a novel and somewhat arcane legal argument invoking an idea known as “federal preemption.”

In a statement, GenBioPro CEO Evan Masingill said the company was considering “next steps” and maintained that “we are confident in the legal strength of our claims.”

GenBioPro manufactures the generic version of mifepristone.

Since the Supreme Court overruled Roe v. Wade last year, at least 17 states have ceased nearly all abortions, including access to medication abortion. The limited access has resulted in soaring demand for mifepristone, a single pill that terminates an early pregnancy up to 10 weeks by blocking the hormone progesterone.

While many people rely on unregulated distributors to obtain the drug online — a practice discouraged by drug safety experts — legal access remains heavily restricted by the Food and Drug Administration. Mifepristone can only be prescribed by certified providers who understand how the drug works and agree to look out for potential complications or medical conditions such as ectopic pregnancy, which requires immediate medical attention.

At the same time, the FDA says mifepristone is safe enough to be provided via telehealth appointments and mailed to a patient without evaluating them in person.

In January, GenBioPro filed a lawsuit against West Virginia arguing that the state’s law banning access to the drug was in direct conflict with federal rules governing its distribution.

At the time, advocates hoped the legal strategy could be used to strike down other state abortion bans as well.

Under the Constitution, federal laws preempt state laws when they are in conflict.

In his ruling Thursday, Chambers, who was appointed by President Bill Clinton, cited the “overwhelming evidence of the safety and efficacy of mifepristone” and noted the two decades that the drug has been on the market.

Chambers also said West Virginia shouldn’t be allowed to prohibit telehealth access because it’s still up to the FDA to decide how a drug can be provided to patients.

Still, the judge pointed to the decision by the Supreme Court to leave the question of abortion up to the states and said states have the right to impose “morality-based laws.”

“Morality-based laws often curtail the sale of goods. The vendors of curtailed goods may lose sales opportunities. Outraged, vendors can feel the laws must somehow be unconstitutional,” Chambers wrote. “And yet, the Supreme Court and Courts of Appeals have repeatedly affirmed that morality-based product bans do not intrinsically offend the dormant Commerce Clause.”