West Virginia asks judge to dismiss lawsuit seeking to overturn state restrictions on abortion pill

West Virginia’s attorney general is urging a judge to dismiss a lawsuit seeking to overturn the state’s restrictions on the abortion pill.

State Attorney General Patrick Morrisey on Tuesday asked the federal court in West Virginia’s southern district to throw out the suit brought by GenBioPro, which manufactures the generic version of the abortion pill called mifepristone.

GenBioPro sued West Virginia in January, arguing that the Food and Drug Administration’s powers to approve and regulate medications pre-empt the state’s restrictions on the abortion pill.

“A State’s police power does not extend to functionally banning an article of interstate commerce — the Constitution leaves that to Congress,” GenBioPro’s lawyers wrote.

The case is one in a series of ongoing legal battles in federal courts around the U.S. over the FDA’s two-decade-old approval of mifepristone. In Texas, anti-abortion physicians have asked a federal judge to overturn the agency’s approval and pull the pill from the U.S. market.

West Virginia’s attorney general said the FDA does not have the power to set abortion policy nationwide through its approval of mifepristone. He described GenBioPro’s argument as a “breathtaking assertion of federal agency power.” The Supreme Court gave states the power to regulate abortion after overturning Roe v. Wade last June, he argued.

“Congress did not silently cede this vast area of historically state regulation to the FDA,” Morrisey argued in the court filing.

GenBioPro has asked the court to declare unconstitutional West Virginia’s law that bans abortion with a few exceptions. The state allows abortions when a medical professional determines the mother’s life is in danger or the child is not viable. Abortion is also allowed in cases of rape or incest before the eighth week of pregnancy for an adult or the 14th week for a minor.

Morrisey said mifepristone is legal for use in West Virginia in those circumstances. The FDA has approved the pill for use through the 10th week of pregnancy.

West Virginia does not allow patients to obtain a prescription for mifepristone through telemedicine appointments. The FDA, on the other hand, has gradually done away with federal regulations that required in-person visits, now allowing patients to obtain prescriptions for the pill through telemedicine and have it delivered by mail.

“West Virginia retains the police power to regulate how drugs may be prescribed and dispensed by medical professionals,” Morrisey argued.

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