CHARLESTON, WV (WVNS) — West Virginia Attorney General Patrick Morrisey filed a motion to dismiss a lawsuit filed by a GenBioPro, which manufactures abortion pills.
The motion was filed on Tuesday, February 21, 2023 to dismiss a lawsuit lodged by GenBioPro, a company that makes a generic version of the abortion pill Mifepristone.
The company’s lawsuit was filed February 1, 2023. It argues that West Virginia’s new abortion law violates several other laws. It argues the state cannot enforce a “ban” of a U.S. Food and Drug Administration-approved drug. The lawsuit asks the United States District Court for the Southern District of West Virginia Huntington Division to find the state’s abortion law unconstitutional.
However, Mifepristone is not banned under the Unborn Child Protection Act—the state’s new abortion law. It can be used in cases where legal abortion can take place in compliance with state law (the Act prohibits abortions except in cases of rape or incest or to protect the life of the mother).
“The lawsuit this company filed does not have a legal leg to stand on—they’re trying to do an end-run around valid state laws. We put forth very strong arguments in our motion to dismiss and believe the court should see this case the way we do. As I have said before, while it may not sit well with manufacturers of abortion drugs, the U.S. Supreme Court has made it clear that regulating abortion is a state issue. I will stand strong for the life of the unborn and will not relent in our defense of this clearly constitutional law.”West Virginia Attorney General Patrick Morrisey
The Attorney General argues in the motion there is nothing in the federal Food, Drug and Cosmetic Act that gave the FDA such extraordinary power—there is nothing in the FDCA that preempts state law regulating abortion and there is nothing to suggest that Congress empowered the FDA to do so by simply evaluating the safety and efficacy of a particular drug.
“The Supreme Court was not ignorant of the FDA’s regulatory role when it overturned Roe v. Wade. The Supreme Court’s decision is very clear: the issue of abortion is left up to the states and their elected representatives.”West Virginia Attorney General Patrick Morrisey