23 states rally to support WV law that protects women, unborn

RICHMOND, Va. – Twenty-three state attorneys general and numerous pro-life advocates submitted friend-of-the-court briefs Monday with the U.S. Court of Appeals for the 4th Circuit in GenBioPro v. Raynes, asking the court to uphold the state’s pro-life law. West Virginia Attorney General Patrick Morrisey, assisted by Alliance Defending Freedom attorneys, asked a federal district court in February 2023 to uphold the state’s Unborn Child Protection Act and other pro-life legal provisions. In August, the court partially dismissed the lawsuit upholding the Unborn Child Protection Act, and then abortion drug manufacturer GenBioPro appealed the case to the 4th Circuit.

“The district court got it right months ago when it found the Unborn Child Protection Act is constitutional.” Attorney General Morrisey said. “The appellate court is ultimately dealing with basic principles of federalism here—whether a state is entitled to regulate for health and safety. And while manufacturers of abortion drugs may not like it, the U.S. Supreme Court has made it clear that regulating abortion is a state issue. I have always stood for protecting life, and I am proud to be joined by my fellow attorneys general and pro-life advocates in standing strong for the life of the unborn.”

“West Virginia has a strong and compelling interest in protecting unborn life, maternal health and safety, and the integrity of the medical profession,” said ADF Senior Counsel Erin Hawley, vice president of the ADF Center for Life and Regulatory Practice. “Neither GenBioPro nor the FDA has the authority to set national abortion policy much less through the Food and Drug Act, which sets minimum safety standards for high-risk drugs and says nothing about abortion.”

GenBioPro, which manufactures the generic chemical abortion drug mifepristone, claims that Congress gave the Food and Drug Administration the power to mandate nationwide access to chemical abortions—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, Huntington Division, rejected that argument, ruling that the state is free to enforce the Unborn Child Protection Act. The court did not decide whether West Virginia’s informed-consent requirements for abortion were constitutional because those laws are not currently in effect. The only part of the state’s near-total protection for life that the court found preempted was a law ensuring women see a physician in person before receiving chemical abortion drugs. GenBioPro later dropped its challenge to the in-person visit requirement, and Attorney General Morrisey and advocates are now asking the 4th Circuit to uphold the Unborn Child Protection Act and informed-consent law.

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.

“West Virginia’s generally applicable abortion ban doesn’t conflict with the FDA’s regulation of mifepristone,” argues the multi-state brief, led by Arkansas. “Rather than attack any particular abortion method—or render a differing judgment on the safety and efficacy questions the FDA has addressed— West Virginia’s law says, on entirely distinct moral grounds, that abortions may not be performed altogether.”

The Unborn Child Protection Act “protects both the rights of the unborn and the wellbeing of women by prohibiting abortions in most cases,” adds the brief from Advancing American Freedom and numerous other nonprofits.

In a separate lawsuit, ADF attorneys representing four medical associations and four doctors have so far prevailed in challenging the FDA’s illegal removal of vital safeguards on abortion drugs that harm women and girls. That case was argued before the U.S. Supreme Court in March.

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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