The U.S. Food and Drug Administration does not have the power to override states that have banned access to the abortion pill, attorneys general in 21 states told a federal judge on Monday.
The AGs asked the federal court in West Virginia to dismiss the lawsuit filed by GenBioPro, one of the makers of the abortion pill mifepristone, CNBC reported.
With the overturning of Roe v. Wade in 2022, multiple states have placed restrictions on abortion, including on medicines that induce the termination of a pregnancy.
GenBioPro's lawsuit asks the court to overturn the ban in West Virginia, saying that it prevents the FDA from following federal law in how it regulates mifepristone.
"Individual state regulation of mifepristone destroys the national common market and conflicts with the strong national interest in ensuring access to a federally approved medication to end a pregnancy, resulting in the kind of economic fracturing the Framers intended the Clause to preclude," GenBioPro argues in the lawsuit.
"A State’s police power does not extend to functionally banning an article of interstate commerce — the Constitution leaves that to Congress," the lawsuit continues.
The GOP AGs counter in their brief to the court that just because the FDA approves a drug, that doesn't give manufacturers an unconditional right to sell it at all times. The states have the power to regulate abortion, whether through surgical means or medication, they say, and that supersedes the manufacturers' rights to sell it.
West Virginia does not have a complete ban on abortion. It allows for it in cases of medical emergency, rape or incest. But, AGs told the court, the FDA could not override the state even if it totally banned the drug.
"Even if West Virginia had banned mifepristone, there still wouldn’t be a preemption problem,” they argued because nothing in the statute keeps a state from banning a drug that federal law permits.
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