GOP States Emphasize That FDA Approval of Abortion Pill Does Not Override State Ban

Virginia House

A coalition of Republican attorneys general asserted this week that the Food and Drug Administration’s authority to approve drugs does not supersede state bans on the abortion pill.

In a filing to a federal court in West Virginia on Monday, 21 GOP attorneys general urged the dismissal of a lawsuit brought by GenBioPro, a manufacturer of the abortion pill mifepristone.

GenBioPro had challenged West Virginia’s abortion ban, arguing that it conflicted with FDA regulations governing mifepristone under federal law.

The Republican attorneys argued in their brief that FDA approval of a drug does not grant the manufacturer an unconditional right to sell the medication unrestricted.

They contended that states retain the authority to regulate abortion procedures, whether surgical or through medication.

According to the GOP attorneys general, West Virginia’s law does not constitute a complete ban on the abortion pill.

They noted exceptions allowing mifepristone in cases of medical emergencies, rape, and incest. Even if West Virginia were to impose a total ban, they argued, FDA regulations would not preempt state law.

“Even if West Virginia had banned mifepristone, there still wouldn’t be a preemption problem,” the attorneys general asserted. They emphasized that nothing in FDA statutes prohibits a state from prohibiting a drug permitted under federal law.

GenBioPro’s lawsuit contends that West Virginia’s abortion ban violates the supremacy and commerce clauses of the U.S. Constitution, which grant the FDA authority over nationwide drug sales.

Abortion Pill – Mifepristone (Photo: Callaghan O’Hare)

“State-level regulation of mifepristone disrupts the national market and conflicts with the significant national interest in ensuring access to federally approved medications for terminating pregnancies, leading to economic fragmentation that the Constitution aims to prevent,” argued GenBioPro’s legal team in the lawsuit.

The battle over mifepristone has intensified following the Supreme Court’s decision to overturn Roe v. Wade last June, placing the FDA and entities like Walgreens in the midst of this contentious issue.

A group of anti-abortion physicians has filed a lawsuit in a federal court in Texas seeking to revoke the FDA’s longstanding approval of mifepristone.

Additionally, Republican attorneys general from 22 states have formally supported this lawsuit through a brief.

In response to the Texas lawsuit, the Biden administration warned that revoking mifepristone’s approval could undermine confidence in the FDA among pharmaceutical companies, potentially harming future drug development.

Meanwhile, Democratic attorneys general have filed a lawsuit in a federal district court in Washington state demanding the FDA lift all remaining federal restrictions on mifepristone.

Walgreens also faced scrutiny after announcing plans to sell mifepristone only where legally permissible.

In response, Republican attorneys general from 21 states cautioned Walgreens against selling the medication in their jurisdictions. Walgreens subsequently stated it would neither dispense nor mail mifepristone in those states.

Following Walgreens’ decision, California Governor Gavin Newsom declared on Monday that the state would cease all business dealings with the company due to its stance on selling the abortion pill in select states.

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