West Virginia Attorney General Patrick Morrisey urged a judge Tuesday to dismiss a lawsuit seeking to invalidate the state's restrictions on obtaining the abortion pill mifepristone.
Pharmaceutical manufacturer GenBioPro argued in the suit that West Virginia could not restrict mifepristone prescriptions issued through online appointments because it contradicts recently relaxed Food and Drug Administration policy.
"Individual state regulation of mifepristone destroys the national common market and conflict 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 dlause to preclude," the lawsuit filed last month read.
"A state's police power does not extend to functionally banning an article of interstate commerce — the Constitution leaves that to Congress," it added.
However, Morrisey said in his response to the U.S. District Court for West Virginia's Southern District that the FDA does not have the power to set abortion policy nationwide.
"Congress did not silently cede this vast area of historically state regulation to the FDA," Morrisey's filing read. "West Virginia retains the police power to regulate how drugs may be prescribed and dispensed by medical professionals."
The Supreme Court's Dobbs v. Jackson Women's Health Organization ruling last year eliminated the constitutional right to an abortion and returned the issue back to states.
West Virginia passed legislation several months after the high court's decision, prohibiting abortions in the state after eight weeks with exceptions for medical emergencies and rape or incest.
The attorney general has maintained that access to mifepristone is legal under the law's exceptions but not through telemedicine appointments.
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