Abortion pill manufacturer GenBioPro filed a lawsuit Wednesday arguing that West Virginia’s sweeping ban on the procedure is unconstitutional — one of a spate of suits testing the legality of medication abortion in the post-Roe legal landscape.
GenBioPro manufactures mifepristone, the first pill in a two-drug regimen used to carry out medication abortion. Medication abortion has become a hot-button issue since the Supreme Court’s June decision to overturn Roe v. Wade, which guaranteed a constitutional right to abortion.
Medication abortion now accounts for more than half of all abortions carried out in the United States, according to the Guttmacher Institute, a research group that supports abortion rights. The Biden administration has sought to shore up access to abortion pills, even as more than a dozen states have banned the procedure.
The drugmaker, which filed its case in West Virginia federal court, argues that the Food and Drug Administration’s regulations on abortion medication override state law. Also on Wednesday, a medical doctor in North Carolina sued officials over the state’s stringent requirements for the use of mifepristone. In November, anti-abortion medical providers filed the “anti-abortion mirror” of the two suits, legal expert Rachel Rebouché said; that lawsuit argues the FDA acted outside of its authority in approving medication abortion in 2000. The outcomes of the cases could determine who can access medication abortion amid the patchwork of abortion laws that have sprung up across the country since the high court’s decision.
“Think about one federal court in Texas saying mifepristone shouldn’t be on the market, one federal court in North Carolina saying the FDA preempts state law,” Rebouché, dean of Temple University’s law school, said in an interview with NBC News. “There’s bound to be confusion.”
The FDA approved mifepristone for medication abortion at up to 10 weeks of pregnancy more than two decades ago. The agency widened access to the drug in 2021 by allowing providers to prescribe abortion pills by telemedicine and send them to patients by mail, and it has taken additional actions to broaden availability more recently.
In September, West Virginia’s governor signed legislation outlawing abortion in almost all cases. The state also restricts the use of telemedicine to prescribe mifepristone.
GenBioPro said West Virginia’s restrictions have caused it significant losses in sales, customers and revenue. The suit argues that state legislation must give way to the federal regulatory authority granted to the FDA by Congress. The North Carolina lawsuit relies on a similar argument.
“Abortion law and the status of the legality of abortion flickers on and off,” Rebouché said. “One day it’s a constitutional right, the next day there’s a Supreme Court decision, in the weeks after a dozen states rushed to criminalize, those laws are still being interpreted, and on top of it, these conflicts between states and the federal government. We’re just seeing a really dynamic, fast-changing legal landscape.”