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Supporters of abortion rights filed separate lawsuits Wednesday challenging two states’ abortion pill restrictions, the opening salvo in what’s expected to be a protracted legal battle over access to the medications.
The lawsuits argue that limits on the drugs in North Carolina and West Virginia run afoul of the federal authority of the U.S. Food and Drug Administration, which has approved the abortion pill as a safe and effective method for ending pregnancy.
The cases were brought by a North Carolina physician who prescribes the pill, mifepristone, and GenBioPro, which makes a generic version of the drug and sued in West Virginia.
While the lawsuits target specific state laws, they represent key legal tests that could determine access to abortion for millions of women.
The litigation turns on a longstanding legal principle that federal law, including FDA decisions, pre-empts state laws. Indeed, few states have ever tried to fully ban an FDA-approved drug because of past rulings in the agency’s favor.
But with the fall of Roe v. Wade there’s little precedent for the current legal patchwork of laws governing abortion.
After the Supreme Court overturned the decision in June, previously adopted restrictions on abortion kicked in and two states adopted new ones. Currently, bans on abortion at all stages of pregnancy are being followed in 13 states and enforcement is being held up in several other states because of legal challenges.
On top of that, 19 states – including North Carolina and West Virginia – impose limits on how physicians can prescribe and dispense abortion medications.
“West Virginia cannot override the FDA’s safety and efficacy determinations, nor can it disrupt the national market for this medication,” David Frederick, an attorney representing GenBioPro, said in a statement.
Legal experts foresee years of court battles over access to the pills.
North Carolina bans nearly all abortions after 20 weeks, with narrow exceptions for urgent medical emergencies.
