WV defends its pro-life laws against chemical abortion drug manufacturer

HUNTINGTON, W.V. – West Virginia Attorney General Patrick Morrisey, assisted by attorneys from Alliance Defending Freedom, filed a motion Tuesday with a federal district court asking it to dismiss an abortion drug manufacturer’s lawsuit challenging the state’s pro-life laws.

Pharmaceutical company GenBioPro, which manufactures the chemical abortion drug mifepristone, is asking the U.S. District Court for the Southern District of West Virginia, Huntington Division, to render the state’s Unborn Child Protection Act and other pro-life legal provisions unconstitutional. The company claims that Congress gave the Food and Drug Administration the power to mandate nationwide access to dangerous chemical abortions—preempting West Virginia’s duly-enacted pro-life laws that protect the lives of the unborn and mothers.

“The Supreme Court was not ignorant of the FDA’s regulatory role when it overturned Roe v. Wade,” Attorney General Morrisey said. “The Supreme Court’s decision is very clear: the issue of abortion is left up to the states and their elected representatives.”

“West Virginia has a strong and compelling interest in protecting unborn life, maternal health and safety, and the integrity of the medical profession; and thanks to the state’s pro-life laws, it can do just that,” said ADF Senior Counsel Denise Harle, director of the ADF Center for Life. “It is no surprise that the manufacturer of this dangerous chemical abortion drug would seek to put profit over the lives of pregnant women and their unborn children. Simply put, the FDA does not have the authority to set national abortion policy, and we urge the court to reject this baseless attempt by GenBioPro to market, promote, and sell harmful drugs to vulnerable women and girls in West Virginia.”

In the memo in support of the motion to dismiss filed in GenBioPro v. Sorsaia, Attorney General Morrisey and ADF attorneys note that nothing in the text of the federal Food, Drug, and Cosmetic Act “suggests that Congress authorized FDA to exercise such extraordinary power to displace states in addressing matters of health care practice and prescriptive authority, let alone over the social and political issue that is abortion.”

The motion continues, “Nothing in the text of the FDCA suggests that Congress accorded FDA the unilateral—and indeed, ‘exclusive’ power, to use [GenBioPro’s] word—to set national abortion policy. Under ordinary principles of statutory interpretation, that contention fails; the FDCA’s text does not so much as mention abortion. Nor does it direct FDA to consider the legitimate and important state interests in protecting unborn life, maternal health, and the integrity of the medical profession—interests that the Supreme Court in Dobbs returned to elected representatives.”

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, making abortion illegal except in a few rare instances. Further, any licensed medical professional who violates the statute can lose his or her license. West Virginia also amended its criminal law to prohibit any non-licensed medical professional from performing abortions, prohibit telehealth practitioners from “prescribing or dispensing an abortifacient,” and require health care boards to adopt implementing rules for the restriction.

In a separate lawsuit, ADF attorneys are suing the FDA for illegally approving chemical abortion drugs that harm women and girls.

• Pronunciation guide: Harle (HAR’-lee)

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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