Addinto the loss of women’s reproductive health choices, the last potential for constitutional protection failed in a federal court decision yesterday. If that ruling holds after higher court review, any right to abortion may be gone. Only Congress would still have power to provide nationwide protection – an unlikely prospect.
The new ruling by a federal appeals court is a highly significant demonstration of how far state governments that are opposed to abortion may now go, with the power they regained when the Supreme Court took away a woman’s constitutional right to end a pregnancy three years ago in the Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade.
By a 2-to-1 vote, the appeals court upheld a West Virginia law that forbids doctors in that state from prescribing a drug used for abortion. That drug, mifepristone, now provides abortion in the most private, least expensive way; it is now the choice in two-thirds of all cases ending pregnancy. It has been used in 5 million cases since 2000.
The majority opinion went so far as to denounce the drug company that had challenged the law as promoting a theory that is “but a fig leaf for an assault on the Dobbs decision….Just after the Supreme Court restored the states’ traditional authority to regulate abortion, GenBioPro [the drug company] would have us wrest it right back from them….When the rule of law is under blunt assault, disregarding the Supreme Court is not an option.”
GenBioPro is the government-approved maker of the generic version of mifepristone. That drug, originally created in France, is used in a protocol with another drug – misoprostol – to bring about an abortion up to 10 weeks in pregnancy. The patient takes the drugs orally, at home, after being prescribed by a medical or drug professional. It is considered far safer than abortion by surgery.
With the Supreme Court’s Dobbs decision, the medical alternative to abortion has become the new target of anti-abortion state legislators and advocacy groups. Twenty-eight states now restrict or ban medical abortions. West Virginia’s legislature passed its nearly total ban on all abortions, including non-surgical procedures, less than three months after the Dobbs decision by the Supreme Court.
The court challenge to that law by GenBioPro is based fundamentally on a clause that has been in the U.S. Constitution since its beginning: Article VI, known as the “Supremacy Clause,” makes national law supreme over all state law that conflicts.
From that clause, the Supreme Court — beginning in 1819 in the case of McCulloch v. Maryland — has fashioned doctrines of “preemption” to gauge when state law must yield to federal law. Under that approach, Congress can expressly declare that it intends to override a state law, or Congress by implication can do so. “Implied preemption” occurs either when the state and federal law cannot both be enforced because of conflicts, or when a state law interferes with enforcing a federal law. (Law, in this sense, means either a specific statute or a government rule or regulation.)
When GenBioPro sued in federal court to challenge the West Virginia ban on mifepristone, it argued that the law conflicted directly with a series of regulations issued by the U.S. Food and Drug Administration – the federal agency that decides when a new drug is safe and effective and thus can be used in medical treatment. The FDA has approved mifepristone’s safety and effectiveness since 2000, and in the years since then has imposed a lengthy list of restrictions on its use. More recently, it has eased some of those restrictions, after finding that they were no longer needed or could be relaxed without threatening patient safety.
In Tuesday’s decision, the federal appeals court majority ruled that the West Virginia ban was not preempted under either doctrine. Because states have always had the primary authority to pass laws governing medical procedures, the majority said, Congress would have had to speak with far more clarity than it did in authorizing FDA to issue rules governing drugs like mifepristone.
The opinion somewhat snidely commented that “we are asked [to find preemption] under what are at best the fuzziest set of federal instructions when the Supreme Court has insisted upon congressional clarity. If Congress wishes to preempt laws like West Virginia’s, why hasn’t it come right out and said so?”
The majority opinion was written by Circuit Judge J. Harvie Wilkinson, and was joined by a federal trial judge, Rossie A. Alston, who was sitting temporarily on the appeals court under a special assignment for such a panel.
The dissent, by Circuit Judge DeAndrea Gist Benjamin, called the decision “a troubling opinion” and criticized the state law as erecting “barriers to life-saving healthcare for countless West Virginians in ways not envisioned by Congress.” The state law, she wrote, “upsets the constitutional balance between the National Government and the States.” Further, she argued, the West Virginia legislature had gone even further than the Supreme Court had allowed in the Dobbs decision.
The decision by the three-judge panel is subject to a reconsideration by all of the 15 judges who sit on the Fourth Circuit Court (based in Richmond, VA). GenBioPro can ask for that review, and it will take a majority of the 15 judges – at least eight – to do so.
The drug company, which stands to lose enormous business if bans on mifepristone spread further, also has the option of taking the controversy directly to the Supreme Court now or waiting until after review is finished if the full appeals court takes on the case.
