The West Virginia Attorney General was sued by the maker of one of two drugs used during medical abortions.
GenBioPro, which makes a generic version of mifepristone, accused the AG and a local prosecuting attorney of causing the company “significant, ongoing economic injury.”
“Federal law preempts West Virginia’s Ban and Restrictions,” the company states in its lawsuit. “These laws impermissibly restrict patients’ access to mifepristone and GenBioPro’s opportunity and ability to market, promote, and sell the medication in the State.”
West Virginia Governor Jim Justice signed into law a ban on abortions during any stage of pregnancy in September, just over two months after the United States Supreme Court overturned 1973’s Roe v Wade. The Unborn Child Protection Act permits abortion under limited circumstances including if the pregnancy was conceived through rape or incest or if there is a medical emergency.
Prior to the current ban, West Virginia had placed restrictions on the prescription of mifepristone. There was a required waiting period before a woman could undergo an abortion and telemedicine services were prohibited from prescribing the drug to patients in the state.
GenBioPro argues that Congress included mifepristone on a list of drugs more tightly regulated by the Food and Drug Administration and, accordingly, Congress gave only the FDA the power to restrict access to the medication.
“West Virginia cannot override FDA’s determinations about the appropriate restrictions on a medication that FDA approved for use and Congress subjected to this enhanced regulatory regime,” GenBioPro argued. “This Court should declare West Virginia’s Ban and Restrictions invalid and enjoin their enforcement because they adversely affect the sale and use of mifepristone within the State.”
The drug maker is seeking a declaratory judgment. The lawsuit was filed in the United State District Court for the Southern District of West Virginia Huntington Division.
GenBioPro is headquartered in Las Vegas, Nevada. The company reports that its generic mifepristone is 97% successful when taken in combination with misoprostol and is a noninvasive alternative to surgical abortions.
“Mifepristone is available only under an FDA-administered Risk Evaluation and Mitigation Strategy (REMS) program,” the company reports. “Mifepristone is used in combination with misoprostol to carry out an early abortion. ‘Early’ is defined as up to 70 days from the first day of your patient’s last menstrual period.”
In addition to Attorney General Patrick Morrisey, Mark A. Sorsaia, the Prosecuting Attorney for Putnam County, was named as a defendant because he “has authority to prosecute violations of the Criminal Abortion Ban and other criminal restrictions on abortion in Putnam County.”
The lawsuit quotes Sorsaia as having said, “[As] prosecutors we have a clear obligation to enforce the laws of our state. I believe if abortion is illegal then no responsible medical provider will be doing them.”
“We are prepared to defend West Virginia’s new abortion law to the fullest,” Morrisey said on Jan. 25 in response to the lawsuit. “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.”
