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GenBioPro v. Sorsaia

Description:  A chemical abortion drug manufacturer is challenging West Virginia’s pro-life laws that protect unborn lives and maternal health and safety.

A mother holding a baby
Friday, Aug 25, 2023

HUNTINGTON, W.V. – A federal district court Thursday partially dismissed a lawsuit from chemical abortion drug manufacturer GenBioPro that had targeted the state’s pro-life laws. West Virginia Attorney General Patrick Morrisey, assisted by Alliance Defending Freedom attorneys, asked the court to uphold the state’s Unborn Child Protection Act and other pro-life legal provisions.

GenBioPro, which manufactures the generic chemical abortion drug mifepristone, asked the court to render the state’s pro-life laws unconstitutional, claiming 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 court rejected most of those arguments, ruling that the state is free to pass and enforce pro-life laws. The only part of the state’s near-total protection for life that the court found could still be challenged is the law ensuring women see a physician in person before receiving chemical abortion drugs. West Virginia had amended its law to prohibit telehealth practitioners from “prescribing or dispensing an abortifacient,” so now the lawsuit will proceed only as it regards that prohibition.

“As I have said all along, the new Unborn Child Protection Act is constitutional; I am pleased the court saw it the way we did,” Attorney General Morrisey said. “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, and I will always stand 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, who argued before the court on behalf of West Virginia. “It’s unacceptable for the manufacturer of a dangerous drug to put profit over the lives of pregnant women and their unborn children. Neither GenBioPro nor the FDA has the authority to set national abortion policy.”

In a brief supporting the motion to dismiss filed with the U.S. District Court for the Southern District of West Virginia, Huntington Division, Attorney General Morrisey and ADF attorneys noted that, contrary to GenBioPro’s arguments, 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.”

“Congress has not expressed an intent to occupy the field of drugs subject to a [Risk Evaluation and Mitigation Strategy] in a manner which would preempt West Virginia’s abortion restrictions,” the court wrote in its decision in GenBioPro v. Sorsaia.

Last year, 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 representing four medical associations and four doctors have so far prevailed in challenging the FDA’s illegal removal of vital safeguards on chemical abortion drugs that harm women and girls.

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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ABOUT Erin Morrow Hawley

Erin Morrow Hawley serves as senior counsel and vice president of the Center for Life and regulatory practice at Alliance Defending Freedom. Before joining ADF, Hawley practiced appellate law at Kirkland and Ellis LLP, Bancroft LLP, and King & Spalding LLP. Hawley has litigated extensively before the U.S. Supreme Court as well as numerous federal courts of appeals and state courts of last resort. She also worked at the U.S. Department of Justice, serving as counsel to Attorney General Michael Mukasey. As an academic, Hawley served as an associate professor of law at the University of Missouri and she also taught constitutional law as a senior fellow at the Kinder Institute for Constitutional Democracy. Hawley is a former law clerk to U.S. Supreme Court Chief Justice John G. Roberts and Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the 4th Circuit. Hawley received her bachelor’s degree in Animal Science from Texas A&M University and her law degree from Yale Law School where she served as a Coker Fellow in Constitutional Law and on the Yale Law Journal. She is an active member of the Missouri and District of Columbia bars and is admitted to practice before the U.S. Supreme Court and various federal courts of appeals.