CLARKSBURG, W.Va. (WBOY) — West Virginia is being sued by an abortion pill manufacturer over its law restricting abortion access that was passed after the Supreme Court of the United States’ decision overturning Roe v. Wade.
The law bans abortion at all stages of pregnancy except for in the case of non-viable fetuses, fetal anomalies and medical emergencies, as well as rape and incest for up to eight weeks for adults and 14 weeks for minors, as long as the victim reports the crime to law enforcement first. West Virginia does limit how physicians can prescribe and dispense abortion medications, but the pills have not been banned outright.
Mifepristone, the drug at the center of the lawsuit, is approved by the U.S. Food and Drug Administration for use by women who are up to 10 weeks pregnant.
The lawsuit, filed by manufacturer GenBioPro, alleges that West Virginia’s abortion law violates the Supremacy Clause and the Commerce Clause of the US Constitution, according to a press release from the company.
The Commerce Clause grants Congress the power to regulate interstate commerce.
The 117th Congress did not pass any legislation codifying abortion after the Dobbs decision. President Joe Biden has since called upon the 118th Congress, where the House is controlled by Republicans, to codify abortion access at the federal level.
The company argues that “Congress subjected [mifepristone] to a substantial and detailed federal regulatory program with which West Virginia law interferes.”
The Supremacy Clause, or Article VI, Paragraph 2 of the U.S. Constitution, is generally regarded by legal experts to mean that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.
However, the Supreme Court’s Dobbs v Jackson Women’s Health Organization overturned the previous Roe ruling, which established a right to abortion implied within U.S. citizens’ right to privacy.
West Virginia Attorney General Patrick Morrisey, who is considering running for Sen. Joe Manchin’s (D) Senate seat or for West Virginia governor, released the following statement in response to the lawsuit:
We are prepared to defend West Virginia’s new abortion law to the fullest. 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