State Restrictions On Abortion Pills Challenged In New Lawsuits

Topline

Two lawsuits filed Wednesday in North Carolina and West Virginia are asking for the states to lift restrictions on abortion pills, arguing that federal rules allowing them should outweigh state bans, part of a broader showdown over the legality of medical abortion after the Supreme Court overturned Roe v. Wade.

New lawsuits are aiming to improve access to the abortion drug mifepristone after West Virginia and … [+] North Carolina enacted restrictions or banned it entirely.

Key Facts

Abortion pill manufacturer GenBioPro filed a federal lawsuit in West Virginia taking aim at the state’s ban on medication abortion, as well as restrictions on it like a mandatory waiting period that were in effect even before West Virginia fully banned abortion in September.

GenBioPro argues federal law should preempt those state restrictions, as the Food and Drug Administration has authorized the abortion drug mifepristone and Congress backed that approval, passing legislation saying state restrictions on FDA-authorized drugs may “not be unduly burdensome on patient access to the drug.”

Banning medication abortion “make[s] it nearly impossible” for GenBioPro to sell its product, the company argues, alleging the ban violates the Supremacy and Commerce Clauses of the U.S. Constitution.

Physician Amy Bryant separately sued North Carolina and its state health officials in federal court Wednesday on similar grounds, arguing that while the state still allows abortion, it still has a “complex web of requirements” on how mifepristone can be given out, like requiring it to be dispensed in-person by a physician only in certain facilities.

These restrictions also “conflict with federal law” and interfere with Bryant’s ability to provide medical care, the physician alleges, asking the court to lift all restrictions on medication abortion.

Representatives for West Virginia Attorney General Patrick Morrisey (R) and North Carolina AG Josh Stein (D) have not yet responded to requests for comment.

What To Watch For

It will likely be months before either of these lawsuits result in any concrete decisions that could affect medication abortion, but any potential rulings in the plaintiffs’ favor could have broader effects nationwide by leading to similar lawsuits in other states. Abortion is now banned in more than a dozen states—and seven more have bans that have been blocked in court—and others that still allow abortion have other restrictions in place on medication abortion specifically.

Surprising Fact

GenBioPro previously filed a similar lawsuit in Mississippi that aimed to overturn that state’s ban on medication abortion, which was filed before the Supreme Court overturned Roe v. Wade. The company then voluntarily withdrew the lawsuit in August, saying it was regrouping on its legal strategy amid the “changed national landscape.”

What We Don’t Know

If a different court case could soon suspend the use of abortion pills nationwide. Anti-abortion rights advocates filed their own federal lawsuit in Texas seeking to take away the FDA’s authorization of mifepristone, claiming it lacked the authority to approve it. That lawsuit remains pending and there haven’t been any rulings on it yet since it was filed in November. It’s been assigned to a Trump-appointed judge.

Key Background

Medication abortion is the most common abortion method in the U.S., making up 53% of all abortions performed in 2020, and mifepristone is one of two drugs as part of that process. The drug terminates a pregnancy, then a second medication, misoprostol, induces contractions to expel the tissue. (Misoprostol is also used to treat other conditions and so hasn’t been subject to as much legal scrutiny.) A wave of state-level bans on abortion has prompted new tactics to make abortion pills available, such as mail-order services—and mail-forwarding services that can help skirt state bans—and abortion providers setting up mobile clinics on the borders of states where abortion is outlawed. The Biden Administration has also looked to medication abortion as a key part of its tactics in blunting the impact of the Supreme Court’s ruling, taking steps to expand access to mifepristone like allowing it to be dispensed at retail pharmacies.