Advocates call it a pro-life victory, but how extensive and for how long?
(NCR) A federal appeals court on Tuesday (July 15) upheld West Virginia’s ban on abortion pills.
GenBioPro, an abortion-pill manufacturer, had argued that an existing approval by the U.S. Food and Drug Administration of its generic version of mifepristone in April 2019 preempts regulation by the states.
But the U.S. Court of Appeals for the 4th Circuit found that Congress can only preempt state regulations by doing so explicitly, adding that existing federal legislation concerning prescription drugs “suggests that Congress intended to create a regulatory floor, not a ceiling.”
“The states are not free to dilute congressional safety measures, but they are free to strengthen them,” the court said in a 28-page majority opinion.
The case was decided 2-1 by a three-judge panel of the 4th Circuit, which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia.
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Here are several takeaways:
1. The case has gotten a lot of interest
Most abortions nowadays are chemical abortions, and the percentage is growing. In 2023, 63% of abortions took place through pills, according to a report from the Guttmacher Institute, which supports abortion and tracks it.
That helps explain why a midlevel federal court case has gotten so much attention.
Most federal circuit-court cases draw zero friend-of-the-court briefs from outside parties — and for those that do, only a handful, according to a 2011 study.
But the West Virginia abortion-pills case, GenBioPro v. Raynes, drew 10 friend-of-the-court briefs supporting the abortion-pills maker and 47 friend-of-the-court briefs supporting the state of West Virginia’s ban on abortion pills.
One of the briefs supporting the West Virginia law was from 21 states that have banned or significantly restricted abortion.
2. Pro-lifers are claiming victory
Chemical abortions typically require a two-pill regimen. Mifepristone blocks the hormone progesterone, which is needed for a pregnancy to continue, and thus kills the developing embryo. Misoprostol induces labor to expel the embryo.
Pro-lifers and abortion supporters disagree sharply on whether abortion pills are safe for women who take them.
The U.S. Food and Drug Administration, which approved GenBioPro’s generic version of mifepristone in April 2019, says chemical abortions are safe if the pills are taken within the safety parameters, citing studies. Critics say the FDA tainted the data in 2016 by removing a requirement that abortion providers report nonfatal adverse events and that abortion pills aren’t as safe as the agency says.
“This ruling gives states the power to protect the safety of its women and girls where the federal government has failed,” said Ashley McGuire, senior fellow with The Catholic Association and EWTN co-host of the nationally syndicated radio show Conversations with Consequences, in a written statement.
By letting a state ban on abortion pills stand, Tuesday’s West Virginia decision enables pro-life states to try to keep a lid on chemical abortions.
“This is a big win for pro-life state laws, as the Fourth Circuit recognized that states are free to regulate mifepristone above the federal floor in the interests of the health and safety of their citizens,” said Patrick Brennan, a professor of law at Villanova University’s Charles Widger School of Law, by email.
Tweet This: By letting a state ban on abortion pills stand, the West Virginia decision allows pro-life states to try to keep a lid on chemical abortion.
3. Either way, court ruling was bound to break new ground
Can states regulate prescription drugs that the FDA normally regulates?
A lawyer for GenBioPro said during oral arguments Oct. 29, 2024 that if the Fourth Circuit upheld West Virginia’s ban on Mifepristone, it would be “the first case in the history of the United States, the first court of appeals, to hold that a state can restrict access to an FDA-approved drug.”
Judge J. Harvie Wilkinson III, who later wrote this week’s opinion upholding the state’s ban, offered an analogy to opioids, which are used as painkillers but also lead to addictions that have led to many deaths.
“This opioid crisis is ravaging the Ohio River Valley. It's ravaging upper New England. It is a brutal thing and all I'm asking you is whether a state could not, in light of its experience, take some recognition of the risk of addiction, of a lifelong addiction,” the judge said.
“It would chain somebody to this particular drug, and can't the states -- could not a state act to reduce or mitigate the risk of addiction by enacting some additional conditions on access?” the judge said.
“Yes,” responded David Frederick, a partner in a Washington D.C. law firm, “but this -- the Mifepristone is not subject to the Controlled Substances Act, it's not addictive, there is not a risk of an addiction or of a similar kind of crisis with opioids.”
“Oh, I'm speaking of risk generally,” the judge replied.
“I understand,” Frederick said. “But Judge, I think it's important to take into account that West Virginia here did not do some safety analysis of Mifepristone before it enacted the [Unborn Child Protection Act]. It enacted the UCPA without knowing what any of the science was.”
On the other side, a lawyer representing the state of West Virginia argued that a 2007 federal statute meant to provide a regulatory framework for prescription drugs shouldn’t be used to prevent states from prohibiting abortion, which legally they have been able to do since the U.S. Supreme Court overturned Roe v. Wade with the Dobbs decision in June 2022.
“I think the reason that there's a paucity of cases is because, precisely because no one, including the FDA, has ever thought that Congress in 2007 was mandating nationwide abortion access,” said Erin Hawley, senior counsel with Alliance Defending Freedom.
4. The appeals court panel’s decision tracks the left-right divide on abortion
The 2-1 4th Circuit panel decision featured two Republican appointees (J. Harvie Wilkinson III, appointed by President Ronald Reagan; and Rossie Alston Jr., appointed by President Donald Trump) in the majority against one Democratic nominee (DeAndrea Gist Benjamin, appointed by President Joe Biden) in the minority.
The abortion-pills provider, GenBioPro, can appeal the decision to the full 4th Circuit, which currently has a slight Democratic edge of 8-7. (Among Republican appointees, one is from Reagan, one from President George H.W. Bush, two from President George W. Bush, and three from Trump. Among Democratic appointees, one is from President Bill Clinton, with four from President Barack Obama, three from Biden.)
But hearing of the full court (known as “en banc”) for a case already decided by a three-judge panel of a federal circuit court are rare — typically at or less than 1%.
5. It’s unclear whether U.S. Supreme Court will take the case
The U.S. Supreme Court agrees to hear only about 1% of the cases appealed to it each year. Granting a so-called writ of certiorari to hear a case requires the assent of at least four justices.
One typical scenario for taking a case is when lower circuit courts of appeal issue contradictory rulings in similar cases.
That hasn’t happened yet with state restrictions on abortion pills, because the 4th Circuit is the first federal court of appeals to decide such a case.
Dwight Duncan, constitutional law professor at the University of Massachusetts School of Law, told the Register that the case tracks with the typical left-right divide on the U.S. Supreme Court, with the three liberals (Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson) likely to side against the West Virginia law, possibly joined by Chief Justice John Roberts.
For the time being, though, he doesn’t see the high court weighing in.
“I think SCOTUS will leave this case alone unless there’s a split in the federal circuit courts of appeal, in which case they’ll have to resolve it,” Duncan said by text. “If they do, I think they’ll uphold it, 6-3 or 5-4 — depending on how squishy Roberts is.”
6. The case doesn’t affect whether abortion pills can be mailed
A pro-life argument that mailing abortion pills violates federal law made a brief appearance in the West Virginia abortion-pills case, but it didn’t stick.
It’s an important related issue, because the future of abortion consists of abortion pills prescribed by telehealth and sent by mail or private carrier, if current trends hold.
“The proportion of abortions that were provided via telehealth increased over time from 5% in April-June of 2022 to 25% by the end of December 2024,” states a June 2025 report by the Society for Family Planning, which supports abortion and studies it.
Pro-lifers say mailing abortion pills violates federal law — under the federal Comstock Act of 1873, which prohibits sending by mail “[e]very article, instrument, drug, medicine, or thing … for producing abortion …” and under related language in federal law that extends the ban to “any express company or other common carrier.”
West Virginia’s attorney general made a fleeting reference to the argument in a footnote of a court filing in February 2023, saying that “other federal laws prohibit the mailing of abortion drugs.”
But U.S. District Court Judge Robert Chambers, a Clinton appointee, rejected the argument, even though he acknowledged a certain plausibility to it.
“While the plain language of the statute arguably encompasses GenBioPro’s business model, the Comstock Act is currently understood to apply only to use of the mails in an illegal manner,” the judge wrote in a May 2023 decision, noting that a U.S. Department of Justice memo in December 2022, during the Biden administration, argued that mailing abortion pills is legal.
The Trump administration has not superseded that memo. Last year, during the presidential campaign, Trump and his running mate, current Vice President JD Vance, expressed support for maintaining access to abortion pills.
Trump repeated that position in an interview with NBC in December 2024, after he was elected president a second time but before he took office, but he also said, “Things do change.”
Editor's note: Matthew McDonald is a staff reporter for The National Catholic Register and the editor of New Boston Post. Reprinted with permission from the National Catholic Register – www.ncregister.com. Heartbeat International submitted an amicus brief in the case, and manages Pregnancy Help News.