Federal Court Turns Away Abortion Pill Maker’s Attempt To Overturn Dobbs
On Wednesday of this week, the Fourth Circuit delivered a significant victory for the pro-life movement. A panel of the Court of Appeals upheld West Virginia’s pro-life law against a challenge by mifepristone manufacturer GenBioPro.
The court ruled that the FDA’s approval of the deadly abortion drug did not preempt West Virginia’s law prohibiting abortion except in certain limited circumstances. Had the Court ruled against West Virginia, it would have rewarded the brazen attempt by pro-abortion forces to nullify the Dobbs decision, which returned to the states the authority to regulate or prohibit abortion. It would have vested in Congress and unelected federal bureaucrats the right to dictate abortion policy nationwide, requiring that states allow the use of mifepristone to kill unborn children up to 70 days gestation for any reason. Life Legal filed an amicus brief to oppose this outrageous expansion of federal power and course reversal in the wake of the Dobbs victory.
West Virginia’s law prohibits abortion by any means, chemical or surgical, except in certain cases, i.e. an ectopic pregnancy, a medical emergency, or in cases of rape and incest where the abortion is performed within the first 8 weeks of pregnancy and reported to a law enforcement agency 48 hours prior to the procedure. Because the law focused on the timing and reasons for abortion, the state did not ban the use of mifepristone in situations where abortion is permissible under its law. Yet our opponents (and unfortunately some pro-life groups) have mischaracterized this case as one involving a state “ban on mifepristone.” Ironically, a ban on the dispensing of mifepristone, if based purely on safety concerns, could be challenged on preemption grounds because the FDA has already approved the use of mifepristone under a Risk Evaluation and Mitigation Strategy. That approval arguably prevents states from legislating in the area of drug safety.
In our amicus brief, Life Legal argued, and the Fourth Circuit agreed, that the FDA’s primary concern in the drug approval process is safety, not access, as GenBioPro falsely maintained. West Virginia’s decision to prohibit abortion except in limited cases is squarely within the state’s historic power to regulate the practice of medicine, and the FDA’s relatively recent approval of mifepristone could not infringe upon that power unless that was the clear intention of Congress. But in granting to the FDA the power to ensure drug safety, Congress did not evidence any intent to preempt state abortion law. Therefore, West Virginia’s pro-life law, which did not disallow the use of the drug mifepristone on safety grounds, does not conflict with the FDA’s authority. Doctors in West Virginia are in fact still able to prescribe mifepristone, or perform surgical abortions, in those limited cases where abortion is allowed.
Should GenBioPro file a petition with the Supreme Court to review the Fourth Circuit’s decision, Life Legal stands ready to oppose such a bald attempt to unravel the Dobbs opinion and to preserve to the states the power to enact pro-life laws to protect unborn lives.