A federal court has upheld West Virginia’s abortion, ruling the state can continue protecting babies.
On Tuesday, the U.S. Court of Appeals for the 4th Circuit rejected a bid by GenBioPro—the generic manufacturer of the abortion drug—to federalize the regulation of prescription drugs, including the abortion drug mifepristone.
Then-West Virginia Attorney General Patrick Morrisey, now governor, assisted by Alliance Defending Freedom attorneys, asked a federal district court in February 2023 to uphold the state’s Unborn Child Protection Act against a preemption challenge. In August 2023, the court partially dismissed the lawsuit challenging the law, and GenBioPro appealed the case to the 4th Circuit.
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“Big win out of the 4th Circuit today,” said Gov. Morrisey. “I defended this law as Attorney General and am proud to see a victory in this case. West Virginia can continue to enforce our pro-life laws and lead the nation in our efforts to protect life. We will always be a pro-life state!”
Abortions have dropped 98% in West Virginia thanks to the abortion ban saving babies.
The leading pro-life legal group also celebrated the news.
“The 4th Circuit Court of Appeals rightly refused GenBioPro’s invitation to federalize the issue of abortion,” said ADF Senior Counsel Erin Hawley, vice president of the ADF Center for Life and Regulatory Practice. “We’re pleased the 4th Circuit agreed that the 2007 amendments to the Federal Food Drug and Cosmetic Act do not forbid the states from setting minimum safety standards for high-risk drugs or enacting legislation that protects life.”
“Preemption in this instance would upend the federal-state balance by supplanting every state law tangentially touching a federal domain,” the court wrote in its opinion in GenBioPro v. Raynes. The Fourth Circuit concluded that the Food Drug and Cosmetic Act “create[s] a regulatory floor, not a ceiling,” and that there was no indication “Congress intended to guarantee nationwide access to mifepristone when it enacted the FDAAA.”
GenBioPro, which manufactures the generic chemical abortion drug mifepristone, claimed that Congress mandated nationwide access to chemical abortions in 2007 amendments to the FDCA—preempting West Virginia’s duly-enacted pro-life laws that protect the lives of the unborn and mothers. The U.S. District Court for the Southern District of West Virginia rejected that argument, ruling that the state is free to enforce the Unborn Child Protection Act. The 4th Circuit agreed.
In 2022, after the U.S. Supreme Court overturned Roe v. Wade, West Virginia largely replaced its previous regulation of abortion with the Unborn Child Protection Act, limiting abortion to certain circumstances including medical emergencies, sexual assault, and incest. Any licensed medical professional who violates the statute can lose his or her license. West Virginia also prohibits any non-licensed medical professional from performing abortions.
Twenty-three states and numerous pro-life advocates submitted friend-of-the-court briefs in April 2024 to the 4th Circuit asking it to uphold West Virginia’s pro-life law.
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Author: Steven Ertelt
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