Republican States Say the FDA Doesn’t Have the Authority to Override State Abortion Pill Bans

CNBC Spencer Kimball
@SPENCEKIMBALL

The Food and Drug Administration’s power to approve drugs does not override state bans on the abortion pill, a coalition of Republican attorneys general told a federal judge this week.

The 21 GOP attorneys general told a federal court in West Virginia on Monday that it should dismiss a lawsuit filed by GenBioPro, one of the manufacturers of the abortion pill mifepristone. The company has asked the court to overturn West Virginia’s abortion ban, arguing that it conflicts with how the FDA regulates mifepristone under federal law.

The Republicans, in their brief to the court, argued that FDA approval of a drug does not give the manufacturer an unconditional right to the sell the medication at all times. The states have the power to regulate abortion whether it is performed through a surgical procedure or a medication, they said.

The GOP attorneys general said West Virginia’s law does not completely ban the abortion pill. Mifepristone can be used in cases of medical emergency, rape and incest, they said. But the FDA’s powers wouldn’t override West Virginia law even if the state did completely ban mifepristone.

“Even if West Virginia had banned mifepristone, there still wouldn’t be a preemption problem,” the Republican attorneys general argued. Nothing in the statute that governs the FDA prevents a state from banning a drug that federal law otherwise permits, they said.The Food and Drug Administration’s power to approve drugs does not override state bans on the abortion pill, a coalition of Republican attorneys general told a federal judge this week.

The 21 GOP attorneys general told a federal court in West Virginia on Monday that it should dismiss a lawsuit filed by GenBioPro, one of the manufacturers of the abortion pill mifepristone. The company has asked the court to overturn West Virginia’s abortion ban, arguing that it conflicts with how the FDA regulates mifepristone under federal law.

The Republicans, in their brief to the court, argued that FDA approval of a drug does not give the manufacturer an unconditional right to the sell the medication at all times. The states have the power to regulate abortion whether it is performed through a surgical procedure or a medication, they said.

The GOP attorneys general said West Virginia’s law does not completely ban the abortion pill. Mifepristone can be used in cases of medical emergency, rape and incest, they said. But the FDA’s powers wouldn’t override West Virginia law even if the state did completely ban mifepristone.

“Even if West Virginia had banned mifepristone, there still wouldn’t be a preemption problem,” the Republican attorneys general argued. Nothing in the statute that governs the FDA prevents a state from banning a drug that federal law otherwise permits, they said.

GenBioPro has argued that West Virginia’s abortion ban violates the supremacy and commerce clauses of the U.S. Constitution, which give the FDA the power to decide which drugs are sold nationwide.

“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’s lawyers argued in the lawsuit.

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