The pro-life law is being challenged by GenBioPro, a company that manufactures the abortion-inducing drug mifepristone. The company’s complaint argues that the state’s law regulating mifepristone ought to be preempted by federal law because the drug has been approved for sale by the U.S. Food and Drug Administration (“FDA”).  

GenBioPro’s lawsuit is predicated on fundamentally flawed legal reasoning. First, West Virginia has a general ban on abortion, not mifepristone specifically, and there are several circumstances in which mifepristone can still be prescribed within the state. Second, even if West Virginia had banned mifepristone outright, there is nothing in federal law that could preempt a hypothetical state prohibition of a specific drug. In similar cases, the U.S. Supreme Court has long held that state laws may only be preempted if they prevent a manufacturer from complying with the Food, Drug and Cosmetic Act. That has not occurred in this case.  

Taken to their logical end, GenBioPro’s shaky legal arguments would imply that states have virtually no authority to regulate any product that has been approved for sale by the federal government.  

The amicus brief states: “GenBioPro argues that federal approval of a product for sale preempts any state regulation of its use. The consequences of that theory of preemption are staggering and nonsensical. It would mean that whenever a federal agency authorizes the sale of a product, that authorization becomes a shield that peddlers and users can hide behind to violate state law. . . . It would mean that when the FDA approves a drug that when administered in large doses can facilitate assisted suicide, a State cannot prohibit a doctor from assisting suicide with the FDA-approved drug.”