Generic abortion pill maker GenBioPro strategically files appeal after dropping challenge

UPDATE, 11/10/23: On November 9, 2023, GBP’s decision to nix the telehealth challenge was strategically followed by a decision to file an appeal in the case.

Attorney General Morrissey said his office stands ready to respond, “In August, 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. Two months later, the company nixed the telehealth challenge to pave the way for an appeal,” AG Morrissey’s office wrote in a statement.

“As we did in federal district court, we stand ready to defend West Virginia law to the fullest,” Attorney General Morrissey said. “There’s no doubt in my mind the new Unborn Child Protection Act is not preempted by federal law and that all of these statutes are constitutional,” AG Morrissey said.

“This issue is very near and dear to my heart. I stand firm in the belief that it is our duty to protect innocent life—I will always stand for the most vulnerable of our society and the sanctity of life,” Attorney General Morrissey added.

11/09/23: Abortion pill maker GenBioPro has dropped its remaining challenge to a West Virginia law after a partial dismissal in August, rendered by U.S. District Court Judge Robert C. Chambers, allowed the state to restrict abortion pill sales. It is estimated that the abortion pill has likely ended the lives of almost 6 million preborn human beings since it was approved in 2000.

GenBioPro (GBP) is the generic maker of the drug mifepristone (brand name Mifeprex), approved by the Food and Drug Administration (FDA) in 2000 to be used in a regimen with misoprostol for the termination of pregnancy. GBP was represented in the case by attorneys from the law firm of Powell & Majestro P.L.L.C. 

Just weeks ago, GenBioPro published the names of multiple pharmacies it claimed were now certified to dispense the deadly abortion pill to women.

August Decision

According to a previous statement from West Virginia Attorney General Patrick Morrisey’s office, the August decision “concluded that the new pro-life law [Unborn Child Protection Act (UCPA)] was constitutional and not preempted,” noting that the decision allowed prescribing the abortion pill via telehealth.

“GenBioPro, which manufactures the generic chemical abortion drug mifepristone, asked the court to render the state’s pro-life laws unconstitutional, claiming that Congress gave the Food and Drug Administration the power to mandate nationwide access to dangerous chemical abortions—preempting West Virginia’s duly-enacted pro-life laws that protect the lives of the unborn and mothers,” Alliance Defending Freedom (ADF), which assisted Attorney General Morrisey in the case, explained in August.

“The court rejected most of those arguments, ruling that the state is free to pass and enforce pro-life laws. The only part of the state’s near-total protection for life that the court found could still be challenged is the law ensuring women see a physician in person before receiving chemical abortion drugs. West Virginia had amended its law to prohibit telehealth practitioners from ‘prescribing or dispensing an abortifacient,’ so now the lawsuit will proceed only as it regards that prohibition,” ADF also wrote at that time.

November Dismissal

Then, in statements issued by the State’s AG on November 7, 2023, Attorney General Morrissey announced that GenBioPro had “nixed the remaining count in its challenge to the state’s laws that bar prescribing the drug via telehealth” and that Judge Chambers had entered the final dismissal order in the case, setting “the stage for an expected appeal,” the AG’s statement claimed.

“As we did in federal district court, we stand ready to defend West Virginia law to the fullest,” Attorney General Morrissey said. “There’s no doubt in my mind the new Unborn Child Protection Act is not preempted by federal law and that all of these statutes are constitutional.”

“The U.S. Supreme Court has made it clear that regulating abortion is a state issue, and I will always stand strong for the life of the unborn,” Attorney General Morrissey also stated.