Federal Court Backs West Virginia’s Abortion Pill Ban, Rejects Preemption Argument
In a significant post-Dobbs decision, the Fourth Circuit ruled that federal drug regulations do not override state abortion bans, allowing West Virginia to block access to mifepristone despite FDA app
A federal appeals court has upheld West Virginia’s near-total ban on the abortion pill mifepristone, ruling that federal drug safety regulations do not preempt the state’s restrictions. The decision, handed down by the Fourth Circuit on July 15, is the latest flashpoint in the national legal battle over medication abortion following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.
The case centered on a challenge brought by GenBioPro, a pharmaceutical company that manufactures a generic form of mifepristone. The company argued that West Virginia’s Unborn Child Protection Act—which bans nearly all abortions, including medication-induced ones—was preempted by the Food and Drug Administration’s Risk Evaluation and Mitigation Strategy (REMS), which governs access to drugs like mifepristone.
But the court disagreed. Writing for the majority, Judge J. Harvie Wilkinson III emphasized the state’s traditional authority to regulate abortion, citing the Supreme Court’s Dobbs ruling, which returned abortion policymaking to the states. The court found that Congress did not clearly intend for the FDA’s regulatory framework to override a state’s ability to restrict the use of abortion medication.
The ruling rejects both field and conflict preemption arguments, concluding that West Virginia’s law regulates abortion—not the safety or distribution of drugs per se—and therefore does not intrude on the domain of federal drug regulation. While the FDA regulates how mifepristone may be dispensed where abortion is legal, the state’s law governs whether abortion can occur in the first place.
In a strong dissent, Judge DeAndrea Gist Benjamin accused the majority of ignoring the practical consequences of the decision, warning that it will severely limit access to a safe and FDA-approved medication. She argued that the state’s near-total ban directly interferes with federal policy and constitutes a textbook case of conflict preemption.
This decision widens the legal patchwork governing abortion pills nationwide. With some states shielding providers from out-of-state penalties and others seeking to restrict medication access even across borders, the ruling may encourage further legal challenges or prompt Congress to act—if it can overcome partisan gridlock.
For now, the court’s decision affirms a state’s right to limit access to abortion pills, even when those pills are federally approved for safety and efficacy.