In a 2-1 decision, an appellate panel ruled that with the overturning of Roe v. Wade, states are free to restrict or ban abortion as they see fit — and that includes abortion enabled by FDA-approved abortion pills like mifepristone.
In a victory for the pro-life movement and states’ rights, a three-judge panel for the Fourth Circuit U.S. Court of Appeals has ruled that West Virginia can enforce its law restricting abortion, rejecting an attempt by a drug manufacturer to override state protections for unborn children.
The ruling in GenBioPro v. Raynes centered on whether federal drug law preempts state abortion restrictions. GenBioPro, the manufacturer of the chemical abortion drug mifepristone, had argued that the Food and Drug Administration’s approval of the drug should override state laws banning or restricting its use. The court disagreed.
The court’s 2-1 decision affirms the authority of states to regulate abortion and other high-risk medications within its borders, even when the drugs in question have federal approval. The panel concluded that the 2007 amendments to the Federal Food, Drug, and Cosmetic Act (FDCA) did not strip states of their right to enact minimum safety standards or protect unborn life.
Judge J. Harvie Wilkinson III, writing for the majority, explained that the FDCA “falls well short of expressing a clear intention to displace the states’ historic and sovereign right to protect the health and safety of their citizens and that “Preemption in this instance would upend the federal-state balance by supplanting every state law tangentially touching a federal domain.”
He further clarified that federal law creates “a regulatory floor, not a ceiling,” allowing states to go further in safeguarding health and life. It also noted that there was no indication Congress intended to guarantee nationwide access to mifepristone when it passed the FDA Amendments Act (FDAAA).
“The 4th Circuit Court of Appeals rightly refused GenBioPro’s invitation to federalize the issue of abortion,” said Erin Hawley, senior counsel for Alliance Defending Freedom and vice president for the firm’s Center for Life and Regulatory Practice. “We’re pleased the 4th Circuit agreed that the 2007 amendments to the Federal Food Drug and Cosmetic Act do not forbid the states from setting minimum safety standards for high-risk drugs or enacting legislation that protects life.”
The lawsuit was originally filed in Jan. 25, 2023, following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which returned the regulation of abortion to the states in June 2022.
West Virginia has since passed a series of pro-life measures, including a near-total abortion ban signed into law by then-Gov. Jim Justice on Sept. 16, 2022. The law prohibits abortions at all stages of pregnancy, with narrow exceptions for medical emergencies and in cases of rape or incest. It also mandates that any permitted abortion be performed by a physician in a hospital setting. In addition, West Virginia’s constitution includes an amendment clarifying that it does not recognize or protect a right to abortion.
GenBioPro challenged West Virginia’s pro-life law, claiming it was preempted by federal authority under the FDCA. Then-Attorney General Morrisey, assisted by attorneys with Alliance Defending Freedom (ADF), defended the statute in federal court. In August 2023, the U.S. District Court for the Southern District of West Virginia partially dismissed the lawsuit, rejecting GenBioPro’s preemption claim. The manufacturer appealed to the Fourth Circuit, which upheld the district court’s decision.
The outcome represents a major affirmation of the principle that states retain the authority to regulate abortion, even when it involves FDA-approved drugs. Pro-life advocates say the decision is a step forward in protecting the health of women and the lives of the unborn.
In addition to the state of West Virginia, 23 other states and several national pro-life organizations submitted amicus briefs in support of the law, adding to the strong concern over efforts to use federal regulatory schemes to override state abortion protections.
GenBioPro argued that the FDA’s approval gives the company the right to distribute Mifepristone nationwide, regardless of state law. But the Fourth Circuit panel rejected that view, reaffirming that federal drug approval does not guarantee access in states that have legally and constitutionally enacted limits on abortion.
The ruling could have broader implications as other states seek to enforce similar pro-life protections in the wake of the Dobbs decision. Legal experts suggest it may serve as a persuasive precedent in other circuits where similar lawsuits are pending.
For West Virginians who fought for the Unborn Child Protection Act, Tuesday’s ruling was seen as a hard-won affirmation of their right to defend life in law.
Gov. Patrick Morrisey called the ruling a “big win” and a “pro-life victory.”
“I am proud to see a victory in this case,” Morrisey wrote in a post on X. “West Virginia can continue to enforce our pro-life laws and lead the nation in our efforts to protect life. We will always be a pro-life state!”
The U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision fundamentally shifted the legal situation regarding abortion in America. By overturning Roe v. Wade, the Court rightly returned the authority to regulate abortion to the states. This was a restoration of federalism. Dobbs affirmed that the U.S. Constitution contains no right to abortion, leaving each state free to enact laws that reflect the values of its citizens.
West Virginia is a prime example. In 2022, it passed a near-total abortion ban, with narrow exceptions, requiring that any allowed abortion be performed by a physician in a hospital. This law reflects the will of the people and their elected officials, not the agenda of federal health agencies or pharmaceutical companies.
Thanks to Dobbs, it is fully within the state’s right to do so, and it shouldn’t matter whether abortion is performed surgically or via abortion pills.
Critics of state-level abortion bans argue that FDA approval of abortion drugs like mifepristone should override state laws, citing the Supremacy Clause within the Constitution and statutes like the FDCA. But states already have the right to add their own restrictions to controlled substances and regulate their distribution as they see fit. What’s more, although marijuana is currently illegal under federal law, that hasn’t stopped many states from legalizing or decriminalizing it.
West Virginia believes that it has the constitutional right to protect life within its own borders, and courts are increasingly affirming that principle.
Recent rulings support this shift toward state sovereignty on moral and medical issues. The Fourth Circuit Court’s decision upholding West Virginia’s abortion law is just one example.
In Skrmetti v. United States, the Supreme Court upheld Tennessee’s restrictions on experimental gender-transition procedures for minors. South Carolina was also recently affirmed in its right to defund Planned Parenthood. These cases reflect a broader judicial recognition that states have a compelling interest in protecting their citizens, including children in the womb.
From a Christian perspective, this is a moral imperative. Scripture teaches that every human being is made in the image of God (Genesis 1:27) and that life begins in the womb (Psalm 139:13-14). According to Romans 13:1-4, the role of government is to uphold justice and restrain evil. Laws like West Virginia’s fulfill that God-given duty by safeguarding preborn children.
Efforts by groups like GenBioPro to bypass state law and impose abortion access represent a dangerous rejection of both democratic self-governance and moral accountability. Christians understand that legality does not equal morality. Just because something is permitted by federal agencies or supported by powerful corporations does not make it right. It is the responsibility of Christians to speak truth even when it’s unpopular, and to defend those who cannot protect themselves.
This moment calls for continued advocacy. Believers must support laws that protect life, serve women facing unexpected pregnancies, and model a culture that values every human being.
The Dobbs decision didn’t end the fight over abortion but returned it to states and their citizens. In states like West Virginia, the people have chosen life.
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