Abortions Story Archives - West Virginia Public Broadcasting

Abortion Pill Case To Be Heard By The U.S. Supreme Court

Developments in a legal battle over medication abortion in West Virginia could change access in the state.

GenBioPro v. Raynes

In November 2023, GenBioPro filed an appeal to a judge’s August ruling in its case against West Virginia’s near-total abortion ban.

In his ruling, U.S. District Court Judge Robert Chambers dismissed some claims filed by pharmaceutical group GenBioPro in a lawsuit against the state’s attorney general Patrick Morrisey.

GenBioPro v. Raynes claimed that Morrisey violated federal law, more specifically the commerce clause of the U.S. Constitution, by prohibiting the sale of the drug in West Virginia.

“Mifepristone is a medication that is subject to a very specific set of regulations that Congress itself considered,” said Skye Perryman, president and CEO of Democracy Forward, GenBioPro’s legal counsel. “The state of West Virginia cannot and should not, under our constitution, be able to maintain a law that conflicts with that.”

The clause gives Congress broad power to regulate and restrict states from impairing interstate commerce.

“The theory is based on the Supremacy Clause of the Constitution, which unequivocally says that when federal law and state law conflict, it is the federal law, that must take precedence,” Perryman said.

However, Chambers, who presides over the southern district of West Virginia, said states have the right to regulate public health and morality by curtailing the sale of goods.

The court earlier ruled that GenBioPro had legal standing to bring a suit against the attorney general’s office on the basis of economic damages incurred by the company.

On Feb. 7, GenBioPro filed an appellate brief at the U.S. Court of Appeals for the Fourth Circuit, arguing that West Virginia’s post-Dobbs abortion ban is in direct conflict with federal law.

The brief urges the Court to reverse the District Court’s August ruling in GenBioPro v. Raynes, which dismissed GenBioPro’s challenge to West Virginia’s near-total abortion ban.

According to Morrisey’s office, in August 2023, the district court dismissed the preemption claim against the state’s Unborn Child Protection Act and the constitutional challenges entirely, but it allowed the preemption challenge to the telehealth provisions to proceed.

Morrisey said GenBioPro removed the telehealth challenge in order to proceed with an appeal.

“GenBioPro won its challenge to the telehealth ban, which it is not pursuing now at this time, but the district court ruled for the state with respect to GenBioPro’s challenge to the abortion ban,” Perryman said.

Perryman said GenBioPro believes that West Virginia’s restrictions are unconstitutional and said that is why she is taking the case on appeal to the U.S. Court of Appeals for the Fourth Circuit.

National Litigation

In the first case of its kind since the overturn of Roe v. Wade, oral arguments for and against access to the abortion pill will be heard at the U.S. Supreme Court on March 26.

The outcome of the case will determine how and when patients can access mifepristone, a pharmaceutical approved by the U.S. Food and Drug Administration in 2000.

GenBioPro manufactures a generic version of Mifepristone. The medication is used in conjunction with Misoprostol for medical abortions and can be taken at home to terminate a pregnancy.

Mifepristone is currently approved for use up to 10 weeks gestation and is often used to treat miscarriages and accounts for more than half of abortions in the U.S.

Mifepristone was first approved by the FDA in 2000 and the agency required the drug to be prescribed in person, over three visits to a doctor. Since 2016, the FDA eased restrictions, allowing patients to obtain prescriptions through telemedicine appointments, and to get the drug by mail.

The original lawsuit was brought by the anti-abortion legal organization Alliance Defending Freedom.

On April 7, 2023, U.S. District Judge Matthew Kacsmaryk imposed a nationwide ban on mifepristone, declaring that the FDA had improperly approved the drug.

At practically the same moment, U.S. District Judge Thomas O. Rice in Washington state issued a contrary ruling, in a case brought by 17 states and the District of Columbia seeking to expand the use of mifepristone. Rice declared that the current FDA rules must remain in place.

While the case was argued in lower courts, the Supreme Court put the lower court decisions on hold, allowing the abortion pill to continue on the market as it had been. That stay will remain while the court considers the case.

The Alliance for Hippocratic Medicine argues they have the authority to bring the case because the “FDA overlooked important safety risks in approving mifepristone and amending its restrictions.”

They argue the FDA depends on emergency room doctors to be a crucial component of the mifepristone regimen, as the treating physician in the event of complications.

“According to the doctors, when they treat women who are experiencing complications after taking mifepristone, they are required to perform or complete an abortion, or otherwise required to participate in a process that facilitates abortion,” the filing states. “They maintain that personally conducting those procedures violates their sincerely held moral beliefs.”

The Biden Administration responded that the Alliance for Hippocratic Medicine failed to show “any evidence of injury from the availability” of the medication.

“This Administration will continue to stand by FDA’s independent approval and regulation of mifepristone as safe and effective,” White House spokeswoman Karine Jean-Pierre said in a statement.

Dozens of groups have filed briefs with the supreme court, from both sides of the argument.

On Jan. 30, GenBioPro filed an amicus brief to SCOTUS in Alliance for Hippocratic Medicine v. Federal Drug Administration.

In the brief, GenBioPro claims: “The court never examined the clinical studies underlying and amply supporting FDA’s 2016 changes, which reported that thousands of patients had successfully and safely used mifepristone under the modified conditions.”

Perryman released the following statement:

“The Fifth Circuit’s ruling in this case undermines decades of science and access to evidence-based medication, as well as the FDA’s regulatory authority,” Perryman said. “The ruling was not based on science or facts, but rather furthered another effort waged by extremists in their attacks on women’s rights and ability to access necessary medication.”

The U.S. Supreme Court will hear oral arguments in Alliance for Hippocratic Medicine v. Federal Drug Administration on March 26, 2024.

Appalachia Health News is a project of West Virginia Public Broadcasting with support from Marshall Health.

Justice: Legal Proceedings On Abortion Law Need To Complete Before Special Session

It may take months before clarification comes on West Virginia’s conflicting abortion laws.

The West Virginia Supreme Court of Appeals has yet to schedule Attorney General Patrick Morrisey’s appeal on an injunction ruling regarding abortion laws. Routine court procedures can take months to complete.

On Monday, Circuit Judge Tara Salango agreed with the plaintiff, the Women’s Health Center of West Virginia. She ruled that a 19th century law making abortion a felony conflicted with more permissive abortion rulings. She filed a temporary injunction, halting the old law.

Morrisey’s appeal follows a motion to stay the injunction. No word yet on the status of that stay motion.

All parties involved, including Gov. Jim Justice and House and Senate leaders have said clarification needs to come from the legislature. Justice, the Democratic Party and many others had agreed the clarification needed to come soon.

However, in his Friday coronavirus briefing, Justice said he will wait on court proceedings before calling a special session.

“The legal community needs to give us real rock solid advice,” Justice said. “Then from that, the legislature needs to speak as to where we need to go.”

The plaintiff, the Women’s Health Center of West Virginia, is the only clinic in the state with reproductive health care that includes abortions. The clinic has resumed taking appointments for abortion services.

W.Va. Attorney General Files Motion To Stay Injunction Halting Abortion Law

West Virginia Attorney General Patrick Morrisey filed a motion Tuesday for a stay of a preliminary injunction halting enforcement of a state abortion law. If granted, the stay would be in place until the courts can decide on an appeal of the injunction.

On Monday, Kanawha Circuit Court Judge Tara Salango agreed with the plaintiff, the Women’s Health Center of West Virginia, that a 19th century law making abortion a felony conflicted with subsequent and more permissive abortion rulings.

Following the injunction, the clinic, , the only one offering reproductive health services including abortion in the state, announced it would resume taking appointments for abortion services.

Morrisey’s stay motion to the West Virginia Supreme Court of Appeals calls the injunction a wrongly-decided ruling.

“We believe it’s critical to file for an immediate stay in light of this flawed decision and seek this emergency measure to prevent immediate loss of precious life,” Morrisey said in a statement. “When life is in jeopardy no effort can be spared to protect it, including seeking whatever stay can be had. The unborn children of our state can’t wait.”

A prior opinion from the attorney general said the 19th century criminal law making abortion a felony was valid, but did need legislative clarification for enforcement purposes due to the more permissive abortion laws also on the state books.

The confusion on conflicting abortion laws is expected to be settled by the West Virginia Legislature, but Gov. Jim Justice has not called for a special session.

Justice: May Be Two Months To Call Special Session On Abortion Law

During his Tuesday coronavirus briefing, Gov. Jim Justice called the court injunction blocking enforcement of a 19th century law making abortions a felony — ‘political theater.’

“The ultimate decision was made by the United States Supreme Court,” Justice said. “Now there’s going to be hoops to jump through from our attorney general and he’s appealing immediately to the state Supreme Court.”

Judge Tara Salango’s Circuit Court ruling on Monday noted that the legislative and executive branches have acknowledged conflicts present in the law and the need for legislative revision.

Senate President Craig Blair and House Speaker Roger Hanshaw have said in statements that their legislative legal teams have been working on abortion law clarification for months.

Three weeks ago, Justice said he would ‘move swiftly’ to call a special legislative session to clarify abortion laws. Many expected it would be called within the interim legislative committee meetings that begin Sunday.

Justice said Tuesday he’s continuing to wait for a “thumbs up” that the legislature is ready.

“It may take a month, maybe take two months or whatever it may be but then all this will get worked out,” Justice said. “We do need a special session to clean that up.”

In a response, Democratic Party Vice-Chair Danielle Walker said not calling the special session quickly is a “supreme dereliction of his duty as governor and an act of callous indifference that puts patients lives at risk.”

W.Va. Abortion And Disabilities Act Takes Effect

Titled “The Unborn Child With Down Syndrome Protection and Education Act,” the law prohibits licensed medical professionals from performing abortions if the fetus has a disability, unless there is a medical emergency or there is a non-medically viable fetus.

A new West Virginia law regarding abortion and disabilities went into effect Friday.

Del. Kayla Kessinger, R-Fayette, said the law is about protecting the sanctity of an unborn life.

“Sadly, we live in a society where a lot of times life is viewed as disposable, especially when something like a prenatal diagnosis occurs during a pregnancy,” Kessinger said. “A lot of times there’s a push by the medical community that abortion is the compassionate approach. But I don’t believe that’s the case.”

Though Down syndrome is in the title, the law applies more broadly to other disabilities.

Katie Quinonez is the Executive Director of the Women’s Health Center of West Virginia, the state’s only remaining abortion provider. Quinonez said the law will create a stressful relationship between medical providers and patients.

“It’s allowing politicians to directly interfere with the clinician-patient relationship,” Quinonez said. “Patients should be able to be completely honest and open with their doctors. And now they’re going to be forced to potentially withhold information from the people providing them with healthcare in order to get the procedure that they need.”

Quinonez said the politically motivated law denies a woman her bodily autonomy.

“This bill has nothing to do with protecting people with disabilities, including Down syndrome. This bill has everything to do with stopping people from getting abortions,” Quinonez said. “Politicians have now stooped to a new low by exploiting people with disabilities, for the simple purpose of promoting their forced birth agenda.”

Kessinger said an unborn life that can not make decisions for itself also needs protection.

“It’s my position that any moral society would deem that it is incumbent upon us to be a voice for the voiceless,” Kessinger said. “We must be an advocate for those who can’t advocate for themselves.”

The bill requires physicians to provide information to women with a prenatal diagnosis of Down syndrome and the effects it could potentially have.

Quinonez pointed out that this law goes into effect as the Supreme Court is poised to overturn Roe v. Wade in the Mississippi case of Dobbs v. Jackson Women’s Health Organization. West Virginia currently has a pre-Roe abortion ban in its state criminal code. If the Supreme Court overturns Roe, abortion could be completely outlawed in West Virginia. A decision is expected as soon as this month.

W.Va. Panel Advances Proposed Abortion Amendment

A West Virginia legislative committee has advanced a proposed amendment to the state constitution that would authorize lawmakers to restrict abortion rights.

The resolution, approved by the Senate Judiciary Committee by voice vote, would require two-thirds passage by both the Senate and House and a voter referendum to take effect.

It was approved Monday, when abortion opponents were rallying at the Capitol.

The U.S. Supreme Court in 1973 upheld women’s constitutional rights to abortion.

The resolution says: “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion.”

In January, a federal appeals court ruled that Tennessee won’t have to recount votes on a similar constitutional amendment passed in 2014.

A West Virginia House committee held a hearing Monday on barring Medicaid-funded abortions.