US appeals court upholds West Virginia restriction on abortion pill sales

CHARLESTON, W.Va. (AP) — A federal appeals court on Tuesday upheld a lower court’s decision to restrict abortion pill sales in West Virginia.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, affirmed a ruling by a U.S. district judge in 2023 despite federal regulators’ approval of the abortion pill as a safe and effective medication.

Most Republican-controlled states have enacted or adopted abortion bans of some kind, including restricting abortion pills by default, since the U.S. Supreme Court in 2022 overturned Roe v. Wade, the 1973 ruling that provided nationwide access to abortion. All have been challenged in court. The Supreme Court ruled in the case of Dobbs v. Jackson Women’s Health Organization.

U.S. District Court Judge Robert C. Chambers had ruled that the near-total abortion ban signed by then-Republican Gov. Jim Justice in September 2022 took precedence over approvals from the U.S. Food and Drug Administration.

“For us to once again federalize the issue of abortion without a clear directive from Congress, right on the heels of Dobbs, would leave us one small step short of defiance,” 4th Circuit Judge J. Harvie Wilkinson III wrote for the court.

“One can of course agree or disagree with the Dobbs decision. But that is not the point,” Wilkinson said. “At a time when the rule of law is under blunt assault, disregarding the Supreme Court is not an option.”

West Virginia Gov. Patrick Morrisey, who took office in January, had defended challenges to the abortion law when he served as attorney general.

“Big win out of the 4th Circuit today,” Morrisey said in a statement.

GenBioPro Inc., the country’s only manufacturer of a generic version of the abortion pill mifepristone, had argued that the state cannot block access to a FDA-approved drug. Chambers had dismissed the majority of GenBioPro’s challenges, finding there is “no disputing that health, medicine, and medical licensure are traditional areas of state authority.”

Appeals judge DeAndrea Gist Benjamin concurred and dissented in part Tuesday, calling it a “troubling opinion.”

“Put plainly, this law erects barriers to life-saving healthcare for countless West Virginians in ways not envisioned by Congress,” Benjamin wrote.

Not at issue in the appeal was a challenge by GenBioPro concerning a separate West Virginia law that stopped providers from prescribing mifepristone by telehealth. Chambers had allowed that challenge to proceed. The U.S. Supreme Court last year unanimously preserved access to mifepristone, which is used in nearly two-thirds of all abortions in the U.S. in 2023.