Law360 (August 24, 2023, 10:32 PM EDT) -- A West Virginia federal judge on Thursday axed GenBioPro's challenge to a state law severely restricting access to medication abortions, saying the U.S. Supreme Court has repeatedly affirmed that morality-based product bans are not intrinsically unconstitutional, but allowed the pharmaceutical company's claim over telemedicine prescribing restrictions to proceed.
U.S. District Judge Robert C. Chambers [in a 35 page opinion denying iin part and granting in part a motion to dismiss] said while West Virginia's Unborn Child Protection Act — a morality-based law that curtails the sale of a medication used in abortions — may infuriate a manufacturer, it does not violate the U.S. Constitution's dormant commerce clause.
"Outraged, vendors can feel the laws must somehow be unconstitutional," the judge said, but the dormant commerce clause, which gives the U.S. Congress broad power to regulate interstate commerce, is not intrinsically offended by these morality-based product bans.
As such, the judge said, GenBioPro Inc.'s challenge to West Virginia's Unborn Child Protection Act is dismissed.
However, Judge Chambers allowed the company's claims regarding the state's ban on prescribing mifepristone via telemedicine to move forward.
GenBioPro sued Prosecuting Attorney of Putnam County Mark Sorsaia and West Virginia Attorney General Patrick Morrisey in January claiming the state "severely constricted the market for mifepristone statewide" following the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization
last year that did away with the constitutional right to abortion access.
GenBioPro manufactures a generic version of mifepristone, which was first approved in name brand form by the U.S. Food and Drug Administration in 2000. The drug is commonly prescribed as the first step in a two-step medication abortion regimen.
Following the Dobbs decision, West Virginia passed the Unborn Child Protection Act, making abortions, including medication abortions, illegal in the state with only a few narrow exceptions.
The state law makes performing, attempting to perform or inducing an abortion a felony in West Virginia, punishable by between 3 and 10 years in prison. Physicians found in violation can lose their medical licenses.
GenBioPro claimed West Virginia's new law as well prior restrictions on the drug impermissibly curb patients' access to mifepristone, limiting the company's ability to market and sell the medication in the state in violation of the U.S. Constitution's supremacy clause and commerce clause.
In May, Judge Chambers refused to dismiss GenBioPro's claims for lack of standing.
But on Thursday, Judge Chambers granted the government's bid to dismiss GenBioPro's challenges to its abortion ban while allowing GenBioPro's challenge to the telemedicine restriction to proceed.
U.S. District Judge Robert C. Chambers [in a 35 page opinion denying iin part and granting in part a motion to dismiss] said while West Virginia's Unborn Child Protection Act — a morality-based law that curtails the sale of a medication used in abortions — may infuriate a manufacturer, it does not violate the U.S. Constitution's dormant commerce clause.
"Outraged, vendors can feel the laws must somehow be unconstitutional," the judge said, but the dormant commerce clause, which gives the U.S. Congress broad power to regulate interstate commerce, is not intrinsically offended by these morality-based product bans.
As such, the judge said, GenBioPro Inc.'s challenge to West Virginia's Unborn Child Protection Act is dismissed.
However, Judge Chambers allowed the company's claims regarding the state's ban on prescribing mifepristone via telemedicine to move forward.
GenBioPro sued Prosecuting Attorney of Putnam County Mark Sorsaia and West Virginia Attorney General Patrick Morrisey in January claiming the state "severely constricted the market for mifepristone statewide" following the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization
last year that did away with the constitutional right to abortion access.GenBioPro manufactures a generic version of mifepristone, which was first approved in name brand form by the U.S. Food and Drug Administration in 2000. The drug is commonly prescribed as the first step in a two-step medication abortion regimen.
Following the Dobbs decision, West Virginia passed the Unborn Child Protection Act, making abortions, including medication abortions, illegal in the state with only a few narrow exceptions.
The state law makes performing, attempting to perform or inducing an abortion a felony in West Virginia, punishable by between 3 and 10 years in prison. Physicians found in violation can lose their medical licenses.
GenBioPro claimed West Virginia's new law as well prior restrictions on the drug impermissibly curb patients' access to mifepristone, limiting the company's ability to market and sell the medication in the state in violation of the U.S. Constitution's supremacy clause and commerce clause.
In May, Judge Chambers refused to dismiss GenBioPro's claims for lack of standing.
But on Thursday, Judge Chambers granted the government's bid to dismiss GenBioPro's challenges to its abortion ban while allowing GenBioPro's challenge to the telemedicine restriction to proceed.
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