Abortion pill maker loses bid to block West Virginia's abortion ban

[August 26, 2023]  By Brendan Pierson

(Reuters) - GenBioPro Inc, which sells a generic version of the abortion pill mifepristone, has lost a bid to overturn West Virginia's near-total ban on abortion.

U.S. District Judge Robert Chambers in Huntington late Thursday rejected the company's argument that West Virginia's ban must be struck down because it conflicts with the federal government's decision to approve and regulate mifepristone for medication abortion, dismissing most of the company's lawsuit.

Chambers, who was appointed to the bench by Democratic then-President Bill Clinton, said the U.S. Supreme Court "has made it clear that regulating abortion is a matter of health and safety upon which States may appropriately exercise their police power." He said the abortion ban regulates healthcare providers, not GenBioPro itself, even though it makes it more difficult for the company to sell its products.

Chambers did allow GenBioPro's claims challenging West Virginia's ban on the use of telemedicine for medication abortion to go forward, finding that that ban conflicted with federal law. The effect of that ruling will likely be limited, however, since West Virginia's abortion ban contains only narrow exceptions for nonviable pregnancies, medical emergencies or cases of rape that are reported to law enforcement.

"While it may not sit well with manufacturers of abortion drugs, the U.S. Supreme Court has made it clear that regulating abortion is a state issue," West Virginia Attorney General Patrick Morrisey, a Republican, said in a statement. "I will always stand strong for the life of the unborn."

"We are confident in the legal strength of our claims and are considering our next steps in the fight to ensure access for patients who need this essential medication," GenBioPro CEO Evan Masingill said in a statement.

GenBioPro filed its lawsuit against West Virginia in January. Around the same time, a North Carolina doctor sued that state over its effective ban on telemedicine abortion, in which the drug is prescribed through a remote consultation with a healthcare provider and dispensed by mail, saying it conflicted with federal law and interfered with her practice. That case remains pending.

Mifepristone, the first medication in a medical abortion, is prepared for a patient at Alamo Women's Clinic in Carbondale, Illinois, U.S., April 20, 2023. REUTERS/Evelyn Hockstein/File Photo

Anti-abortion activists last year separately sued the federal government in an effort to pull mifepristone off the market altogether.

The New Orleans-based 5th U.S. Circuit Court of Appeals last week handed them a partial victory, ordering restrictions on mifepristone, including a ban on prescribing it via telemedicine, and limiting its approved use to the first seven weeks of pregnancy, instead of 10. That order remains on hold while President Joe Biden's administration appeals to the U.S. Supreme Court.

Medication abortion accounts for more than half of U.S. abortions, and has drawn increasing attention since the U.S. Supreme Court's ruling last year overturning its landmark Roe v. Wade ruling, which had legalized abortion nationwide.

Since then, at least 15 of the 50 states have banned abortion outright, according to the Guttmacher Institute, a research organization that supports abortion rights. Other states, such as South Carolina, have banned it after around six weeks of pregnancy, before many women know they are pregnant.

(Reporting By Brendan Pierson in New York, Editing by Alexia Garamfalvi and Jonathan Oatis)

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