A federal court upheld West Virginia’s abortion ban on Thursday, ruling that the state can prohibit the sale of the abortion pill mifepristone despite the drug’s being deemed “safe” by the Food and Drug Administration. The ruling affirms that states have the right to regulate public health and morality.
Abortion pill manufacturer GenBioPro brought the case against the state in January after Republican West Virginia Gov. Jim Justice signed an extensive abortion ban in September 2022. (READ MORE: The Worst of the Max Miller Debacle)
In his ruling, U.S. District Judge Robert C. Chambers noted:
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. 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.
The FDA approved mifepristone for public use in 2000. The drug can be used to end pregnancies as late as 10 weeks by blocking the creation of the hormone progesterone, which the body needs to continue the pregnancy. Mifepristone is just the first drug taken in a two-step process to abort a child.
Over the last few years, the FDA has eased restrictions on the drug. In 2016, it allowed “healthcare providers” to administer the drug, in addition to physicians, and in 2023, it announced that the drug could be administered by mail or by certified pharmacies outside of a health care setting and removed the requirement for an in-person examination by a doctor. (READ MORE: Culture Matters: Righting the American Ship)
While the court was not able to ban the distribution of mifepristone by mail in West Virginia outright, it imposed a temporary ban until the Supreme Court had a chance to weigh in. West Virginia Attorney General Patrick Morrisey said of the appeal, “We are confident in the merits of our case.”
In the wake of Dobbs v. Jackson Women’s Health Organization, at least 17 states have blocked access to nearly all abortions — including those obtained via the pill. The Supreme Court’s decision has made the abortion pill issue a matter of state sovereignty. If a state can ban an abortion procedure, it should also be able to ban the sale of a drug intended to induce an abortion — even if that drug has been approved by the FDA. (READ MORE: Tuberville Is Still Taking a Stand for Babies)
Morrisey said in a statement, “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…. I will always stand strong for the life of the unborn.”
Mifepristone has been at the center of court cases before. In New Orleans, three judges on the 5th U.S. Circuit Court of Appeals overturned an earlier court ruling that would have forced the FDA to withdraw its approval of mifepristone in May. However, the judges did uphold the part of the ruling that prohibited distribution of the drug by mail and required that a physician administer the drug in person.
The Biden administration has condemned that ruling, with Vice President Kamala Harris saying, “It endangers our entire system of drug approval and regulation by undermining the independent, expert judgment of the FDA.”
While GenBioPro has said that it will continue to investigate its legal options, the ruling of the federal court in West Virginia not only protects the lives of the unborn but also protects the state’s rights to regulate substances that it deems harmful to public safety and morality.
